CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

ANSWERS TO BAR
EXAMINATION QUESTIONS
IN

CIVIL LAW
ARRANGED BY TOPIC
(1990 2006)

First Edition - Edited and Arranged by: July

26, 2005
Atty. Janette Laggui-Icao and
Atty. Alex Andrew P. Icao
(Silliman University College of Law)

Latest Edition Edited and Arranged by:

ROMUALDO L. SEERIS II
Silliman University College of Law

From the ANSWERS TO BAR EXAMINATION QUESTIONS by

the UP LAW COMPLEX & Philippine Association of
Law Schools
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

FORWARD

This work is not intended for sale or commerce. This work is freeware. It may be freely copied and

distributed, nevertheless, PERMISSION TO COPY from the editors is ADVISABLE to protect the

interest of the ORIGINAL SOURCES/REFERENCES of this material. It is primarily intended for

all those who desire to have a deeper understanding of the issues touched by the Philippine Bar

Examinations and its trend. It is specially intended for law students from the provinces who, very

often, are recipients of deliberately distorted notes from other unscrupulous law schools and

students. Share to others this work and you will be richly rewarded by God in heaven. It is also very

good karma.

We would like to seek the indulgence of the reader for some Bar Questions which are improperly

classified under a topic and for some topics which are improperly or ignorantly phrased, for the

authors are just Bar Reviewees who have prepared this work while reviewing for the Bar Exams

under time constraints and within their limited knowledge of the law. We would like to seek the

readers indulgence for a lot of typographical errors in this work.

The Authors

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) Table
of Contents
GENERAL PRINCIPLES ....................................................................................................................................... 10
Civil law vs. Common Law (1997) ................................................................................................................................
10 Effect of Obiter & Dissenting Opinion; SC Decisions (1994).........................................................................................
10 Effectivity of Laws (1990)
 ............................................................................................................................................ 10 Equity follows the Law
(2003)............................................................................................................................. ......... 10 Ignorance of the Law
vs. Mistake of Fact (1996)........................................................................................................... 11 Inferior Courts
Decisions (1994) .................................................................................................................................. 11 Prejudicial
PERSONSQuestions
(1997)...............................................................................................................................................................................
................................................................................................................. 11........... 11 Change of Name; Under RA
9048 (2006) ...................................................................................................................... 11 Death; Effects;
Simultaneous Death (1998)..................................................................................................................
12 Death; Effects; Simultaneous Death (1999)..................................................................................................................
12 Death; Effects; Simultaneous Death (2000)..................................................................................................................
12 Juridical Capacity vs. Capacity to Act (1996) ...............................................................................................................
12 Juridical Capacity;
Natural Persons (1999) .................................................................................................................. 13 Waiver of Rights

CONFLICT OF LAWS(2004)
..........................................................................................................................................................................................................
................................................................ 13.................. 13
Appilicable Laws; laws governing contracts (1992) .....................................................................................................
13 Applicable Laws; Arts 15, 16 & 17 (1998) ..................................................................................................................... 13
Applicable Laws; Arts 15, 16, 17 (2002)........................................................................................................................ 14
Applicable Laws; Capacity to Act (1998)...................................................................................................................... 14
Applicable Laws; Capacity to Buy Land (1995) ............................................................................................................ 15
Applicable Laws; Capacity to Contract (1995).............................................................................................................. 15
Applicable Laws; capacity to succeed (1991)............................................................................................................... 15
Applicable Laws; contracts contrary to public policy (1996) ........................................................................................ 15
Applicable Laws; Contracts of Carriage (1995) ............................................................................................................ 16
Applicable Laws; Labor Contracts (1991) .................................................................................................................... 16
Applicable Laws; laws governing marriages (1992) ..................................................................................................... 17
Applicable Laws; laws governing marriages (2003) ..................................................................................................... 17
Applicable Laws; Sale of Real Property (1995) ............................................................................................................. 17
Applicable Laws; Succession; Intestate & Testamentary (2001)................................................................................... 18
Applicable Laws; Sucession of Aliens (1995)............................................................................................................... 18
Applicable Laws; Wills executed abroad (1993) ........................................................................................................... 18
Definition; Cognovit; Borrowing Statute; Characterization (1994) ................................................................................ 18
Definition; forum non-conveniens; long-arm statute (1994) ......................................................................................... 19
Divorce; effect of divorce granted to former Filipinos; Renvoi Doctrine (1997)............................................................. 19
Domiciliary theory vs. Nationality Theory (2004) .......................................................................................................... 19
Forum Non Conveniens & Lex Loci Contractus (2002) ................................................................................................. 19
Nationality Theory (2004)............................................................................................................................................. 20
Naturalization (2003) ............................................................................................................................. ...................... 20
Theory; significant relationships theory (1994)............................................................................................................ 20
Torts; Prescriptive Period (2004) ................................................................................................................................. 21
ADOPTION................................................................................................................................................................. 21
Adoption; Use of Surname of her Natural Mother (2006)
.............................................................................................. 21 Inter-Country Adoption; Formalities
(2005)..................................................................................................................
21 Parental Authority; Rescission of Adoption (1994)
...................................................................................................... 21 Qualification of Adopter
(2005)............................................................................................................................. ....... 22 Qualification of
Adopter; Applicable Law (2001) .......................................................................................................... 22 Qualifications
of Adopter (2000) ............................................................................................................................. ..... 22 Qualifications
of Adopter (2003) ..................................................................................................................................
FAMILY CODE23 Successional Rights of Adopted Child (2004)
...................................................................................................................................................................................
..................................................................................... 23
 23Emancipation (1993) ....................................................................................................................................................
23
Family Code; Retroactive Application; Vested Rights
(2000)........................................................................................ 24
CIVIL LAW Answers to the BAR as Arranged by Topics -2006)
(Year 1990 Family Home; Dwelling House (1994)
.......................................................................................................................... 24 Family; Constitutional Mandates; Divorce
(1991) ......................................................................................................... 24 Marriage; Annulment; Effects; Requisites Before
Remarriage (1990) ........................................................................... 24 Marriage; Annulment; Grounds
(1991)......................................................................................................................... 25 Marriage; Annulment; Judicial
Declaration (1993)........................................................................................................ 25 Marriage; Annulment; Legal Separation;
Prescription of Actions (1996) ...................................................................... 25 Marriage; Annulment; Proper Party
(1990)................................................................................................................... 26 Marriage; Annulment; Proper Party
(1995)................................................................................................................... 26 Marriage; Divorce Decree; Void Marriages
(1992) ........................................................................................................ 26 Marriage; Divorce Decrees; Filiation of Children
(2005) ............................................................................................... 26 Marriage; Divorce Decrees; Filipino Spouses
becoming
Alien (1996)........................................................................... 27 Marriage; Divorce Decrees; Filipino Spouses becoming Alien
(1999)........................................................................... 27 Marriage; Donations by Reason of Marriage; Effect of Declaration of
Nullity (1996) ..................................................... 28 Marriage; Grounds; Declaration of Nullity: Annulment: Legal Separation:
Separation of Property (2003) ..................... 28 Marriage; Grounds; Nullity; Annulment; Legal Separation
(1997)................................................................................. 29 Marriage; Legal Separation; Declaration of Nullity
(2002)............................................................................................. 29 Marriage; Legal Separation; Grounds; Prescriptive Period
(1994) ................................................................................ 29 Marriage; Legal Separation; Mutual guilt (2006)
........................................................................................................... 29 Marriage; Non-Bigamous Marriages (2006)
.................................................................................................................. 30 Marriage; Property Relations; Void Marriages (1991)
................................................................................................... 30 Marriage; Psychological Incapacity
(1996)................................................................................................................... 30 Marriage; Psychological Incapacity
(2006)................................................................................................................... 31 Marriage; Psychological Incapacity
(2006)................................................................................................................... 31 Marriage; Requisites (1995)
......................................................................................................................................... 31 Marriage; Requisites (1999)
......................................................................................................................................... 32 Marriage; Requisites; Marriage
License (1996) ............................................................................................................ 32 Marriage; Requisites; Marriage License
(2002) ............................................................................................................ 33 Marriage; Requisites; Solemnizing Officers
(1994)....................................................................................................... 33 Marriage; Requisites; Void Marriage (1993)
................................................................................................................. 33 Marriage; Void Marriages (2004)
.................................................................................................................................. 34 Marriage; Void Marriages (2006)
.................................................................................................................................. 34 Marriage; Void Marriages; Psychological
Incapacity (2002) ......................................................................................... 35 Parental Authority; Child under 7 years of age
(2006) .................................................................................................. 35 Parental Authority; Special Parental Authority; Liability
of Teachers (2003)................................................................. 35 Parental Authority; Substitute vs. Special (2004)
......................................................................................................... 35 Paternity & Filiation (1999)
.......................................................................................................................................... 36 Paternity & Filiation; Artificial
Insemination; Formalities (2006) ................................................................................... 36 Paternity & Filiation; Common-Law
Union (2004)......................................................................................................... 36 Paternity & Filiation; Proofs; Limitations;
Adopted Child (1995)................................................................................... 36 Paternity & Filiation; Recognition of illegitimate
Child (2005)....................................................................................... 37 Paternity & Filiation; Rights of Legitimate Children (1990)
........................................................................................... 37 Presumptive Legitime (1999)
....................................................................................................................................... 38 Property Relations; Absolute
Community (1994) ......................................................................................................... 38 Property Relations; Ante Nuptial
Agreement (1995) ..................................................................................................... 39 Property Relations; Conjugal Partnership of
Gains (1998) ........................................................................................... 39 Property Relations; Marriage Settlement; Conjugal
Partnership of Gains (2005) .......................................................... 39 Property Relations; Marriage Settlements (1991)
......................................................................................................... 40 Property Relations; Marriage Settlements (1995)
......................................................................................................... 40 Property Relations; Obligations; Benefit of the Family
(2000) ...................................................................................... 41 Property Relations; Unions without Marriage (1992)
.................................................................................................... 41 Property Relations; Unions without Marriage (1997)
.................................................................................................... 41 Property Relations; Unions without Marriage (2000)
.................................................................................................... 42
SUCCESSION........................................................................................................................................................... 42
Amount of Successional Rights (2004)
........................................................................................................................ 42
Barrier between illegitimate & legitimate relatives (1993)
............................................................................................. 42 Barrier between illegitimate & legitimate relatives
(1996) ............................................................................................. 43 Collation (1993)
CIVIL LAW Answers to the BAR as Arranged by Topics -2006)
........................................................................................................................................................... 43 Disinheritance
vs. Preterition (1993) .................................................................................................................. .......... 43
Disinheritance; Ineffective (1999) ............................................................................................................................. ...
43 Disinheritance; Ineffective; Preterition (2000)
.............................................................................................................. 44
(Year 1990 Heirs; Intestate Heirs; Reserva Troncal (1995)
............................................................................................................. 44 Heirs; Intestate Heirs; Shares
(2003)............................................................................................................................ 45 Intestate Succession
(1992)......................................................................................................................................... 45 Intestate Succession
(1997)............................................................................................................................. ............ 45 Intestate Succession
(1998)............................................................................................................................. ............ 46 Intestate Succession
(1998)............................................................................................................................. ............ 46 Intestate Succession
(1999)......................................................................................................................................... 46 Intestate Succession
(2000)............................................................................................................................. ............ 46 Intestate Succession; Reserva
Troncal (1999) ............................................................................................................. 47 Legitime
(1997)................................................................................................................ ............................................ 47 Legitime;
Compulsory Heirs (2003)............................................................................................................................. . 47 Legitime;
Compulsory Heirs vs. Secondary Compulsory Heirs (2005).......................................................................... 48 Preterition
(2001)............................................................................................................................. ............................ 48 Preterition;
Compulsory Heir (1999) ............................................................................................................................ 48 Proceedings;
Intestate Proceedings; Jurisdiction (2004) ............................................................................................. 48 Succession; Death;
Presumptive Legitime (1991) ........................................................................................................ 49 Wills; Codicil; Institution of
Heirs; Substitution of Heirs (2002).................................................................................... 49 Wills; Formalities (1990)
.............................................................................................................................................. 50 Wills; Holographic Wills;
Insertions & Cancellations (1996) ......................................................................................... 50 Wills; Holographic Wills; Witnesses
(1994).................................................................................................................. 50 Wills; Joint Wills (2000)
............................................................................................................................................... 50 Wills; Probate; Intrinsic Validity
(1990) ........................................................................................................................ 51 Wills; Probate; Notarial and Holographic
Wills (1997) .................................................................................................. 51 Wills; Revocation of Wills; Dependent Relative
Revocation (2003)............................................................................... 51 Wills; Testamentary Disposition
(2006)........................................................................................................................ 52 Wills; Testamentary Intent (1996)
................................................................................................................................ 52
DONATION ................................................................................................................................................................ 52
Donation vs. Sale (2003)............................................................................................................................. .................
52
Donations; Condition; Capacity to Sue (1996) ............................................................................................................. 52
Donations; Conditions; Revocation (1991)................................................................................................................... 53
Donations; Effect; illegal & immoral conditions (1997)................................................................................................. 53
Donations; Formalities; Mortis Causa (1990) ............................................................................................................... 54
Donations; Formalities; Mortis Causa (1998) ............................................................................................................... 54
Donations; Inter Vivos; Acceptance (1993) .................................................................................................................. 54
Donations; Perfection (1998) ............................................................................................................................. .......... 54
Donations; Requisites; Immovable Property................................................................................................................ 55
Donations; Unregistered; Effects; Non-Compliance; Resolutory Condition (2006) ....................................................... 55
Donations; Validity; Effectivity; for Unborn Child (1999) .............................................................................................. 55
Donations; with Resolutory Condition (2003)............................................................................................................... 56
PROPERTY............................................................................................................................. ................................... 56
Accretion; Alluvion (2001) ...........................................................................................................................................
56 Accretion; Avulsion (2003)
..........................................................................................................................................
56 Builder; Good Faith
(1992)............................................................................................................................. .............. 57 Builder; Good
Faith vs. Bad Faith (1999) ..................................................................................................................... 57 Builder;
Good Faith vs. Bad Faith (2000) ..................................................................................................................... 57
Builder; Good Faith vs. Bad Faith; Accession (2000)
................................................................................................... 58 Builder; Good Faith vs. Bad Faith; Presumption
(2001)................................................................................................ 58 Chattel Mortgage vs. Pledge (1999)
............................................................................................................................. 58 Chattel Mortgage; Immovables
(1994).......................................................................................................................... 59 Chattel Mortgage;
CIVIL LAW Answers to the BAR as Arranged by Topics -2006)
Immovables (2003).......................................................................................................................... 59 Chattel
Mortgage; Possession (1993) .......................................................................................................................... 60
Chattel Mortgage; Preference of Creditors (1995)
........................................................................................................ 60 Easement vs. Usufruct
(1995)............................................................................................................................. ......... 60 Easement; Effects;
Discontinuous Easements; Permissive Use (2005) ........................................................................ 61 Easement;
Nuisance; Abatement (2002) ...................................................................................................................... 61
Easements; Classification (1998)............................................................................................................................. ....
62 Easements; Right of Way
(1993)............................................................................................................................... ... 62 Easements; Right of
Page 5 of 119 Way
(2000).................................................................................................................................. 62 Easements; Right of
Way; Inseparability (2001) ........................................................................................................... 62
(Year 1990 Easements; Right of Way; Requisites (1996)
............................................................................................................... 63 Ejectment Suit vs. Cancellation of Title (2005)
............................................................................................................. 63 Ejectment Suit; Commodatum (2006)
.......................................................................................................................... 63 Extra-Judicial Partition; Fraud
(1990)........................................................................................................................... 6 3 Hidden Treasure (1995)
............................................................................................................................................... 64 Hidden Treasures (1997)
............................................................................................................................................. 64 Mortgage; Pactum Commissorium
(1999) .................................................................................................................... 64 Mortgage; Pactum Commissorium (2001)
.................................................................................................................... 65 Mortgage; Right of Redemption vs. Equity of
Redemption (1999) ................................................................................ 65 Nuisance; Family House; Not Nuisance per se (2006)
.................................................................................................. 65 Nuisance; Public Nuisance vs. Private Nuisance
(2005)............................................................................................... 65 Ownership; Co-Ownership (1992)
................................................................................................................................ 6 6 Ownership; Co-Ownership; Prescription
(2000) ........................................................................................................... 66 Ownership; Co-Ownership; Prescription (2002)
........................................................................................................... 67 Ownership; Co-Ownership; Redemption (1993)
........................................................................................................... 67 Ownership; Co-Ownership; Redemption (2000)
........................................................................................................... 67 Ownership; Co-Ownership; Redemption (2002)
........................................................................................................... 67 Possession
(1998)....................................................................................................................................................... 68 Property; Real vs.
Personal Property (1995) ................................................................................................................ 68 Property; Real vs. Personal
Property (1997) ................................................................................................................ 68 Sower; Good Faith/ Bad Faith (2000)
........................................................................................................................... 69 Usufruct
(1997)............................................................................................................................. ............................... 69
LAND TRANSFER & DEEDS............................................................................................................................... 69
Acquisition of Lands; Citizenship Requirement (2003).................................................................................................
69 Adverse Claims; Notice of Levy (1998) ........................................................................................................................ 69
Annotation of Lis Pendens; When Proper (2001).......................................................................................................... 70
Foreshore Lands (2000)............................................................................................................................. .................. 70
Forgery;
Innocent Purchaser; Holder in Bad Faith (2005)............................................................................................. 70 Forgery;
Innocent Purchaser; Mirror Principle (1991) .................................................................................................. 71 Fraud;
Procurement of Patent; Effect (2000) ................................................................................................................ 71
Homestead Patents; Void Sale (1999) .......................................................................................................................... 71
Innocent Purchaser for Value (2001)............................................................................................................................ 72
Mirror Principle (1990) ............................................................................................................................. .................... 72
Mirror Principle; Forgery; Innocent Purchaser (1999) .................................................................................................. 73
Notice of Lis Pendens (1995) ...................................................................................................................... ................. 73
Notice of Lis Pendens; Transferee Pendente Lite (2002) .............................................................................................. 73
Prescription & Laches; Elements of Laches (2000) ...................................................................................................... 74
Prescription & Laches; Indefeasibility Rule of Torrens Title (2002) .............................................................................. 74
Prescription (1990) ...................................................................................................................................... ................ 75
Prescription; Real Rights (1992) .................................................................................................................................. 75
Primary Entry Book; Acquisitive Prescription; Laches (1998) ...................................................................................... 76
Reclamation of Foreshore Lands; Limitations (2000) ................................................................................................... 76
Registration; Deed of Mortgage (1994)......................................................................................................................... 77
Remedies; Judicial Confirmation; Imperfect Title (1993) .............................................................................................. 77
Remedies; Judicial Reconstitution of Title (1996) ........................................................................................................ 77
CIVIL LAW Answers to the BAR as Arranged by Topics -2006)
Remedies; Procedure; Consulta (1994)........................................................................................................................ 77
Remedies; Reconveyance vs. Reopening of a Decree; Prescriptive Period (2003)........................................................ 78
Remedies; Reconveyance; Elements (1995) ................................................................................................................ 78
Remedies; Reconveyance; Prescriptive Period (1997) ................................................................................................. 79
Remedies; Reopening of a Decree; Elements (1992).................................................................................................... 79
Torrens System vs. Recording of Evidence of Title (1994) ........................................................................................... 80
Unregistered Land (1991) ............................................................................................................................. ............... 80
CONTRACTS ............................................................................................................................................................ 80
Consensual vs. Real Contracts; Kinds of Real Contracts (1998)
.................................................................................. 80 Consideration; Validity
(2000)............................................................................................................................. .........
80 Contract of Option; Elements
(2005)............................................................................................................................ 81 Inexistent Contracts vs.
Annullable Contracts (2004)................................................................................................... 81 Nature of
Contracts; Obligatoriness (1991).................................................................................................................. 81 Nature
of Contracts; Privity of Contract (1996) ............................................................................................................ 82
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) Nature of Contracts; Relativity of Contracts
(2002) ...................................................................................................... 82 Rescission of Contracts; Proper Party (1996)
.............................................................................................................. 82
OBLIGATIONS ......................................................................................................................................................... 83
Aleatory Contracts; Gambling (2004)........................................................................................................................... 83
Conditional Obligations (2000) ............................................................................................................................. ....... 83
Conditional Obligations (2003) .................................................................................................................................... 83
Conditional Obligations; Promise (1997) ..................................................................................................................... 84
Conditional Obligations; Resolutory Condition (1999) ................................................................................................. 84
Extinguishment; Assignment of Rights (2001) ............................................................................................................. 84
Extinguishment; Cause of Action (2004)...................................................................................................................... 85
Extinguishment; Compensation (2002) ........................................................................................................................ 85
Extinguishment; Compensation vs. Payment (1998) .................................................................................................... 85
Extinguishment; Compensation/Set-Off; Banks (1998) ................................................................................................ 85
Extinguishment; Condonation (2000) .......................................................................................................................... 85
Extinguishment; Extraordinary Inflation or Deflation (2001) ......................................................................................... 86
Extinguishment; Loss (1994) ............................................................................................................................. .......... 86
Extinguishment; Loss; Impossible Service (1993) ....................................................................................................... 86
Extinguishment; Novation (1994)............................................................................................................................. .... 87
Extinguishment; Payment (1995) ................................................................................................................................. 87
Liability; Lease; Joint Liability (2001) .......................................................................................................................... 87
Liability; Solidary Liability (1998)............................................................................................................................. .... 87
Liability; Solidary Obligation (1992)............................................................................................................................. 88
Liability; Solidary Obligation; Mutual Guaranty (2003) ................................................................................................. 88
Loss of the thing due; Force Majeure (2000) ................................................................................................................ 88
Non-Payment of Amortizations; Subdivision Buyer; When justified (2005) ................................................................... 89
Period; Suspensive Period (1991)............................................................................................................................. ... 89
TRUST.................................................................................................................................................................. ....... 89
Express Trust; Prescription (1997) ..............................................................................................................................
89 Implied Trust (1998)............................................................................................................................. ........................
90 Trust; Implied Resulting Trust
(1995)SALES..........................................................................................................................................................................
.............................................................................. 91 ............................................. 91
Assignment of Credit vs. Subrogation (1993)...............................................................................................................
91 Conditional Sale vs. Absolute Sale (1997).................................................................................................................... 91
Contract of Sale vs. Agency to Sell (1999) ................................................................................................................... 91
Contract of Sale; Marital Community Property; Formalities (2006) ............................................................................... 91
Contract to Sell (2001)............................................................................................................................. .................... 92
Contract to Sell vs. Contract of Sale (1997).................................................................................................................. 92
Contract to Sell; Acceptance; Right of First Refusal (1991) .......................................................................................... 92
Double Sales (2001).................................................................................................................................................... . 92
Double Sales (2004)..................................................................................................................................................... 93
Equitable Mortgage (1991)............................................................................................................................. ............. 93
Equitable Mortgage vs. Sale (2005).............................................................................................................................. 93
Immovable Property; Rescission of Contract (2003) .................................................................................................... 94
Maceda Law (2000)............................................................................................................................. ......................... 94
Maceda Law; Recto Law (1999).................................................................................................................................... 95 Option
Contract (2002) ............................................................................................................................. ................... 95
Option Contract; Earnest Money (1993) ....................................................................................................................... 95
Perfected Sale; Acceptance of Earnest Money (2002) .................................................................................................. 95
Redemption; Legal; Formalities (2001) ........................................................................................................................ 96
Redemption; Legal; Formalities (2002) ........................................................................................................................ 96
Right of First Refusal; Lessee; Effect (1996) ................................................................................................................ 96
Right of First Refusal; Lessee; Effect (1998) ................................................................................................................ 97
Right of Repurchase (1993) ......................................................................................................................................... 97
Transfer of Ownership; Non-Payment of the Price (1991)............................................................................................. 97
 Transfer of Ownership; Risk of Loss (1990) ................................................................................................................. 97
LEASE.......................................................................................................................................................................... 97
Extinguishment; Total Distruction; Leased Property (1993)
......................................................................................... 97 Implied New Lease
(1999)............................................................................................................................. ...............
98 Lease of Rural Lands (2000)

........................................................................................................................................ 98 Page 7 of 119

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) Leasee & Lessor; Rights and Obligations (1990)
......................................................................................................... 98 Leasee; Death Thereof; Effects (1997)
......................................................................................................................... 98 Option to Buy; Expired
(2001)............................................................................................................................. ......... 98 Sublease vs. Assignment of
Lease; Rescission of Contract (2005) .............................................................................. 99 Sublease; Delay in Payment of
Rentals (1994) ............................................................................................................. 99 Sublease; Sublessee; Liability
(1999) ........................................................................................................................ 100 Sublease; Sublessee; Liability
(2000) ........................................................................................................................ 100 Sublease; Validity; Assignment of
Sublease (1990) ................................................................................................... 100
COMMON CARRIERS.......................................................................................................................................... 100
Extraordinary Diligence (2000) ..................................................................................................................................
100
AGENCY ................................................................................................................................................................... 101
Agency (2003) ...........................................................................................................................................................
101 Agency vs. Sale (2000) ........................................................................................................................... ...................
101 Agency; coupled with an interest (2001) ....................................................................................................................
101 Agency; Guarantee Commission (2004).....................................................................................................................
101 Agency; Real Estate Mortgage (2004) ........................................................................................................................
101 Appointment of Sub-Agent (1999)............................................................................................................................. .
102 General Agency vs. Special Agency (1992)................................................................................................................
102 Powers of the Agent (1994)........................................................................................................................................
102 Termination;
Effect of Death of Agent (1997) PARTNERSHIP
...........................................................................................................................................................................................................
........................................... 103 ............. 103
Composition of Partnerships; Spouses; Corporations (1994) ....................................................................................
103 Conveyance of a Partners Share Dissolution (1998)..................................................................................................
103 Dissolution of Partnership (1995)
.............................................................................................................................. 103 Dissolution of Partnership;
Termination (1993).......................................................................................................... 104 Effect of Death of Partner
(1997)................................................................................................................................ 104 Obligations of a Partner
(1992) ............................................................................................................................. ..... 104 Obligations of a
Partner; Industrial Partner (2001) COMMODATUM & MUTUUM
...........................................................................................................................................................................................................
....................... 104 ....... 104
Commodatum (1993) ................................................................................................................................................. 104
Commodatum (2005) ................................................................................................................................. ................
105 Commodatum vs. Usufruct (1998)
............................................................................................................................. 105 Mutuum vs. Commodatum (2004)
.............................................................................................................................. 106 Mutuum; Interests
(2001)............................................................................................................................. .............. 106 Mutuum;
Interests (2002)........................................................................................................................................... 106
Mutuum; DEPOSITInterests
.............................................................................................................................(2004)..........................................................
................................................................................. ...................................... 107
 106Compensation; Bank Loan (1997)
.............................................................................................................................. 107 Deposit; Exchange
(1992)..........................................................................................................................................
107
SURETY ....................................................................................................................................................................
107
Recovery of Deficiency (1997) ...................................................................................................................................
107
ANTICHRESIS........................................................................................................................................................ 107
Antichresis (1995) ..................................................................................................................................................... 107
PLEDGE ......................................................................................................................................................... ........... 108
Pledge (1994) ............................................................................................................................................................ 108
Pledge (2004) ............................................................................................................................. ...............................
108 Pledge; Mortgage; Antichresis (1996)
........................................................................................................................ 108QUASI-
CONTRACT.............................................................................................................................................. 108
Quasi-Contracts; Negotiorium Gestio (1992) .............................................................................................................
109 Quasi-Contracts; Negotiorium Gestio (1993) .............................................................................................................
109 Quasi-Contracts; Negotiorium Gestio (1995)
............................................................................................................. 109 Quasi-Contracts; Solutio Indebiti (2004)
.....................................................................................................TORTS & DAMAGES
............................................................................................................................................ 110 .............. 110
Collapse of Structures; Last Clear Chance (1990)......................................................................................................
110 Damages (1994)............................................................................................................................. ............................
111 Damages arising from Death of Unborn Child (1991)
................................................................................................. 111 Damages arising from Death of Unborn Child
(2003) ................................................................................................. 111 Death Indemnity
(1994)........................................................................................................................................ ...... 111Page 8 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) Defense; Due Diligence in Selection
(2003)................................................................................................................ 112 Filing of Separate Civil Action; Need for
Reservation (2003) ...................................................................................... 112 Fortuitous Event; Mechanical Defects (2002)
............................................................................................................. 112 Liability; Airline Company; Non-Performance of an
Obligation (2004)........................................................................ 112 Liability; Airline Company; Non-Performance of an Obligation
(2005)........................................................................ 113 Liability; Employer; Damage caused by Employees (1997)
........................................................................................ 113 Liability; owner who was in the vehicle (1996)
........................................................................................................... 114 Liability; owner who was in the vehicle (1998)
........................................................................................................... 114 Liability; owner who was in the vehicle (2002)
........................................................................................................... 114 Moral Damages & Atty Fees (2002)
............................................................................................................................ 114 Moral Damages; Non-Recovery Thereof
(2006) .......................................................................................................... 115 Quasi-Delict (1992)
.................................................................................................................................................... 115 Quasi-Delict (2005)
.................................................................................................................................................... 115 Quasi-Delict; Acts contrary
to morals (1996) ............................................................................................................. 115 Quasi-Delict; Mismanagement of
Depositors Account (2006).................................................................................... 116 Vicarious Liability (1991)
........................................................................................................................................... 116 Vicarious Liability (2001)
........................................................................................................................................... 117 Vicarious Liability (2002)
........................................................................................................................................... 117 Vicarious Liability (2004)
........................................................................................................................................... 117 Vicarious Liability (2006)
........................................................................................................................................... 117 Vicarious Liability; Public Utility (2000)
..................................................................................................................... 118
INTELLECTUAL PROPERTY ........................................................................................................................... 1 18
Intellectual Creation (2004)........................................................................................................................................ 118
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
GENERAL PRINCIPLES
Civil law vs. Common Law (1997)
How would you compare the Civil Law system in its
governance and trend with that of the Common Law system?
SUGGESTED ANSWER:
As regards "governance": Governance in Civil Law is codal,
statutory and written law. It is additionally derived from case
law. Common law is basically derived from case law.
As regards "trend": Civil law is now tending to rely more and
more on decisions of the courts explaining the laws.
Common law is now codifying laws more and more. So they
are now merging towards similar systems.
Additional Answers:
1. COMMON LAW refers to the traditional part of
the
law as distinct from legislation; it refers to the universal part
of law as distinct from particular local customs (Encyclopedia
Americana, Vol. 7). On the other hand, CIVIL LAW is
understood to be that branch of law governing the
relationship of persons in respect of their personal and
private interests as distinguished from both public and
international laws.
In common law countries, the traditional responsibility
has for the most part been with the judges; in civil law
countries, the task is primarily reposed on the
lawmakers. Contemporary practices, however, so
indicate a trend towards centralizing that function to
professional groups that may indeed, see the gradual
assimilation in time of both systems. [Vitug, Civil. Law
and Jurisprudence, p.
XX)
2. In Civil Law, the statutes theoretically take
precedence over court decisions interpreting them;
while in Common Law, the court decisions
resolving specific cases are regarded as law rather
than the statutes themselves which are, at the start,
merely embodiments of case law. Civil Law is code
law or written law, while Common Law is case law.
Civil Law adopts the deductive method - from the
general to the particular, while the Common Law
uses the inductive approach from the particular to
the general. Common Law relies on equity. Civil
Law anchors itself on the letter of the law. The
civilists are for the judge-proof law even as the
Common Law Is judge-made law. Civil Law judges
are merely supposed to apply laws and not interpret
them.
Effect of Obiter & Dissenting Opinion; SC
Decisions (1994)
2) What are the binding effects of an obiter dictum and a
dissenting opinion? 3) How can a decision of the Supreme
Court be set aside?
ALTERNATIVE ANSWERS:
2) None. Obiter dictum and opinions are not necessary to
the determination of a case. They are not binding and
cannot have the force of official precedents. It is as if the Court
were turning aside from the main topic of the case to collateral
subjects: a dissenting opinion affirms or overrules a claim, right or
obligation. It neither disposes nor awards anything it merely
expresses the view of the dissenter. (Civil Code, Paras]
3) A decision of a division of the Supreme Court
maybe set aside by the Supreme Court sitting en banc, a
Supreme Court decision may be set aside by a contrary ruling
of the Supreme Court itself or by a corrective legislative act
of Congress, although said laws cannot adversely affect those
favored prior to the Supreme Court decision. [Civil Code,
Paras).
Effectivity of Laws (1990)
After a devastating storm causing widespread destruction in
four Central Luzon provinces, the executive and legislative
branches of the government agreed to enact a special law
appropriating P1 billion for purposes of relief and rehabilitation
for the provinces. In view of the urgent nature of the legislative
enactment, it is provided in its effectivity clause that it shall take
effect upon approval and after completion of publication in the
Official Gazette and a newspaper of general circulation in the
Philippines. The law was passed by the Congress on July 1,
1990. signed into law by the President on July 3, 1990, and
published in such newspaper of general circulation on July 7,
1990 and in the Official Gazette on July 10, 1990.
(a) As to the publication of said legislative enactment, is
there sufficient observance or compliance with the
requirements for a valid publication? Explain your answer. (
b) When did the law take effect? Explain your (answer.
c) Can the executive branch start releasing and
disbursing funds appropriated by the said law the day
following its approval? Explain your answer.
SUGGESTED ANSWER:
(a) Yes, there is sufficient compliance. The law itself
prescribes the requisites of publication for its effectivity,
and
all requisites have been complied with. (Article 2, Civil Code)
(b) The law takes effect upon compliance with all the
conditions for effectivity, and the last condition was
complied with on July 10, 1990. Hence, the" law became
effective on that date.
(c) No. It was not yet effective when it was approved by
Congress on July 1, 1990 and approved by the President on
July 3, 1990. The other requisites for its effectivity were not
yet complete at the time.

Equity follows the Law (2003)

It is said that equity follows the law What do you
understand by this phrase, and what are its basic implications?
5%
SUGGESTED ANSWER:
Equity Follows the law means that courts exercising equity
jurisdiction are bound by rules of law and have no arbitrary
discretion to disregard them. (Arsenal v IAC, 143 SCRA 40
[1986]). Equity is applied only in the absence of

Page 10 of 119
CIVIL LAW
Answers to the BAR as Arranged by Topics
but never against statutory law. (Toyota Motor Phil. V CA
216 SCRA 236 [1992]).
Ignorance of the Law vs. Mistake of Fact (1996) Is
there any difference in their legal effect between ignorance of
the law and ignorance or mistake of fact?
SUGGESTED ANSWER:
Yes, there is a difference. While ignorance of the law is not an
excuse for not complying with it, ignorance of fact eliminates
criminal intent as long as there is no negligence (Art, NCC).
In addition, mistake on a doubtful or difficult question of law
may be the basis of good faith (Art. 526. NCC). Mistake of
fact may, furthermore, vitiate consent in a contract and make
it voidable (Art. 1390. NCC).
ALTERNATIVE ANSWER:
Yes. ignorance of the law differs in legal effect from
Ignorance or mistake of fact. The former does not excuse a
party from the legal consequences of his conduct while the
latter does constitute an excuse and is a legal defense.
Inferior Courts Decisions (1994)
Are decisions of the Court of Appeals considered laws?
ALTERNATIVE ANSWERS:
1) a) No, but decisions of the Court of Appeals may serve
as precedents for inferior courts on points of law not covered
by any Supreme Court decision, and a ruling of the Court of
Appeals may become a doctrine. (Miranda vs..
Imperial 77 Phil. 1066).
b) No. Decisions of the Court of Appeals merely have
persuasive, and therefore no mandatory effect. However, a
conclusion or pronouncement which covers a point of law
still undecided may still serve as judicial guide and it is
possible that the same maybe raised to the status of doctrine.
If after it has been subjected to test in the crucible of analysis,
the Supreme Court should find that it has merits and qualities
sufficient for its consideration as a rule of jurisprudence (Civil
Code, Paras).
Prejudicial Questions (1997)
In the context that the term is used in Civil Law, state the (a)
concept, (b) requisites and (c) consequences of a prejudicial
question.
SUGGESTED ANSWER:
(a) Concept A prejudicial question is one which must be
decided first before a criminal action may be instituted or may
proceed because a decision therein is vital to the judgment in
the criminal case. In the case of People vs. Adelo Aragon
(L5930, Feb. 17, 1954), the Supreme Court defined it as one
which arises in a case, the resolution of which question is a
logical antecedent of the issues involved in said case and the
cognizance of which pertains to another tribunal (Paras, Vol.
1, Civil. Code Annotation, 1989 ed. p, 194).
1Requisites The prejudicial question must be determinative of the case a judicial order under RA
9048. before the court.
(Year 1990
(b)
-2006)
1. The civil action involves an issue similar or intimately
related to the issue raised in the criminal action, and 2. the
resolution of such issue determines whether or not the criminal
action may proceed.
(c) Consequences The criminal case must be suspended.
Thus, in a criminal case for damages to one's property, a civil
action that involves the ownership of said property should
first be resolved (De Leon vs. Mabanag. 38 Phil. 202)
PERSONS
Change of Name; Under RA 9048 (2006)
Zirxthoussous delos Santos filed a petition for change of name
with the Office of the Civil Registrar of Mandaluyong City
under the administrative proceeding provided in Republic Act
No. 9048. He alleged that his first name sounds ridiculous and
is extremely difficult to spell and pronounce. After complying
with the requirements of the law, the Civil Registrar granted
his petition and changed his first name Zirxthoussous to
"Jesus." His full name now reads "Jesus delos Santos."
Jesus delos Santos moved to General Santos City to work in a multi-
national company. There, he fell in love and married Mary Grace
delos Santos. She requested him to have his first name changed
because his new name "Jesus delos Santos" is the same name as that
of her father who abandoned her family and became a notorious drug
lord. She wanted to forget him. Hence, Jesus filed another petition
with the Office of the Local Civil Registrar to change his first name
to "Roberto." He claimed that the change is warranted because it will
eradicate all vestiges of the infamy of Mary Grace's father.
Will the petition for change of name of Jesus delos Santos to
Roberto delos Santos under Republic Act No. 9048 prosper?
Explain. (10%)
SUGGESTED ANSWER: No, under the law, Jesus may only
change his name once. In addition, the petition for change of
name may be denied on the following grounds:
(1) Jesus is neither ridiculous, nor tainted with dishonor
nor extremely difficult to write or pronounce.
(2) There is no confusion to be avoided or created with
the use of the registered first name or nickname of the
petitioner.
(3) The petition involves the same entry in the same
document, which was previously corrected or changed under
this Order [Rules and Regulations Implementing RA 9048].
What entries in the Civil Registry may be changed or corrected
without a judicial order? (2.5%)
SUGGESTED ANSWER: Only clerical or typographical errors
and first or nick names may be changed or corrected without
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990
2 Jurisdiction to try said question must be lodged in another
tribunal. in the performance of clerical work in writing, copying, ADDITIONAL ANSWER:
spelling, visible to the eyes or obvious to the understanding,
and can be corrected or changed only by reference to other
existing records. Provided, however, that no correction must
involve the change of nationality, age, status or sex of the
petitioner.
Death; Effects; Simultaneous Death (1998)
Jaime, who is 65, and his son, Willy, who is 25, died in a plane
crash. There is no proof as to who died first. Jaime's only
surviving heir is his wife, Julia, who is also Willy's mother.
Willy's surviving heirs are his mother, Julia and his wife, Wilma.
1. In the settlement of Jaime's estate, can Wilma
successfully claim that her late husband, Willy had a
hereditary share since he was much younger than his father
and, therefore, should
be presumed to have survived longer? [3%]
2. Suppose Jaime had a life insurance policy with his
wife, Julia, and his son, Willy, as the beneficiaries. Can Wilma
successfully claim that one-half of the proceeds should
belong to Willy's estate? |2%J
SUGGESTED ANSWER:
1. No, Wilma cannot successfully claim that Willy had a
hereditary share in his father's estate. Under Art. 43, Civil
Code, two persons "who are called to succeed each other" are
presumed to have died at the same time, in the absence of
proof as to which of them died first. This presumption of
simultaneous death applies in cases involving the question of
succession as between the two who died, who in this case are
mutual heirs, being father and son.
SUGGESTED ANSWER:
2. Yet, Wilma can invoke the presumption of
survivorship and claim that one-half of the proceeds should
belong to Willy's estate, under Sec. 3 (jj) par. 5 Rule 131, Rules
of Court, as the dispute does not involve succession. Under
this presumption, the person between the ages of 15 and 60
years is deemed to have survived one whose age was over 60
at the time of their deaths. The estate of Willy endowed with
juridical personality stands in place and stead of Willy, as
beneficiary.
Death; Effects; Simultaneous Death (1999)
Mr. and Mrs. Cruz, who are childless, met with a serious motor
vehicle accident with Mr. Cruz at the wheel and Mrs. Cruz
seated beside him, resulting in the instant death of Mr. Cruz.
Mrs. Cruz was still alive when help came but she also died on
the way to the hospital. The couple acquired properties worth
One Million (P1 ,000,000.00) Pesos during their marriage,
which are being claimed by the parents of both spouses in
equal shares. Is the claim of both sets of parents valid and why?
(3%)
(b) Suppose in the preceding question, both Mr. and Mrs. Cruz
were already dead when help came, so that no-body could say
Clerical or typographical errors refer to mistakes committed
transcribing or typing an entry in the civil register. The mistake
is harmless and innocuous, such as errors in
absolute community amounting to 1 Million Pesos. His
who died ahead of the other, would your answer be the same
to the question as to who are entitled to the
properties of the deceased couple? (2%) SUGGESTED
ANSWER:
(a) No, the claim of both parents is not valid. When Mr. Cruz
died, he was succeeded by his wife and his parents as his intestate
heirs who will share his estate equally. His estate was 0.5 Million
pesos which is his half share in the
wife, will, therefore, inherit O.25 Million Pesos and his parents will
inherit 0.25 Million Pesos. When Mrs. Cruz died, she was
succeeded by her parents as her intestate heirs. They will inherit all
of her estate consisting of her 0.5 Million half share in the absolute
community and her 0.25 Million inheritance from her husband, or a
total of 0.750 Million Pesos.
In sum, the parents of Mr. Cruz will inherit 250,000 Pesos
while the parents of Mrs. Cruz will inherit 750,000 Pesos.
(b) This being a case of succession, in the absence of
proof as to the time of death of each of the spouses, it is
presumed they died at the same time and no transmission of
rights from one to the other is deemed to have taken place.
Therefore, each of them is deemed to have an estate valued at
P500,000,00, or one-half of their conjugal property of P1
million. Their respective parents will thus inherit the entire P1
Million in equal shares, of P500,000.00 per set of parents.
Death; Effects; Simultaneous Death (2000)
b) Cristy and her late husband Luis had two children, Rose and
Patrick, One summer, her mother-in-law, aged 70, took the
two children, then aged 10 and 12, with her on a boat trip to
Cebu. Unfortunately, the vessel sank en route, and the bodies
of the three were never found. None of the survivors ever saw
them on the water. On the settlement of her mother-in-law's
estate, Cristy files a claim for a share of her estate on the
ground that the same was inherited by her children from their
grandmother in representation of their father, and she
inherited the same from them. Will her action
prosper? (2%)
SUGGESTED ANSWER:
No, her action will not prosper. Since there was no proof as to
who died first, all the three are deemed to have died at the same
time and there was no transmission of rights from one to
another, applying Article 43 of the New Civil Code.
ALTERNATIVE ANSWER:
No, her action will not prosper. Under Article 43 of the New
Civil Code, inasmuch as there is no proof as to who died first,
all the three are presumed to have died at the same time and
there could be no transmission of rights among them. Her
children not having inherited from their grandmother. Cristy
has no right to share in her mother-inlaw's estate. She cannot
share in her own right as she is not a legal heir of her mother-
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
in-law. The survivorship provision of Rule 131 of the Rules of
Court does not apply to the problem. It applies only to those
cases where the issue involved is not succession.
Juridical Capacity vs. Capacity to Act (1996)
Distinguish juridical capacity from capacity to act,
SUGGESTED ANSWER:
JURIDICAL CAPACITY is the fitness to be the subject of
legal relations while CAPACITY TO ACT is the power or to
do acts with legal effect. The former is inherent in every natural
person and is lost only through death while the latter is merely
acquired and may be lost even before death (Art.
37, NCC).
ALTERNATIVE ANSWER;
Juridical capacity, as distinguished from capacity to act: (a) the
former is passive while the latter is active, (b) the former is
inherent in a person while the latter is merely acquired, (c) the
former is lost only through death while the latter may be lost
through death or restricted by causes other than death, and Id)
the former can exist without capacity to act while the latter
cannot exist without juridical capacity.
Juridical Capacity; Natural Persons (1999)
Elated that her sister who had been married for five years was
pregnant for the first time, Alma donated P100,000.00 to the
unborn child. Unfortunately, the baby died one hour after
delivery. May Alma recover the P100.000.00 that she had
donated to said baby before it was born considering that the
baby died? Stated otherwise, is the donation valid and
binding? Explain. (5%)
SUGGESTED ANSWER:
The donation is valid and binding, being an act favorable to
the unborn child, but only if the baby had an intra-uterine life
of not less than seven months and pro-vided there was due
acceptance of the donation by the proper person representing
said child. If the child had less than seven months of intra-
uterine life, it is not deemed born since it died less than 24
hours following its delivery, in which ease the donation never
became effective since the donee never became a person, birth
being determinative of personality. ALTERNATIVE ANSWER:
Even if the baby had an intra-uterine life of more than seven
months and the donation was properly accepted, it would be
void for not having conformed with the proper form. In order
to be valid, the donation and acceptance of personal property
exceeding five thousand pesos should be in writing. (Article
748, par. 3)
Waiver of Rights (2004)
B. DON, an American businessman, secured parental consent
for the employment of five minors to play certain roles in two
movies he was producing at home in Makati. They worked at
odd hours of the day and night, but always accompanied by
parents or other adults. The producer paid the children talent
fees at rates better than adult wages.
But a social worker, DEB, reported to OSWD that these
children often missed going to school. They sometimes drank
wine, aside from being exposed to drugs. In some scenes, they
were filmed naked or in revealing costumes. In his defense,
DON contended all these were part of artistic freedom and
cultural creativity. None of the parents complained, said
DON. He also said they signed a contract containing a waiver
of their right to file any complaint in any office or tribunal
concerning the working conditions of their children acting in
the movies.
Is the waiver valid and binding? Why or why not?
Explain. (5%)
SUGGESTED ANSWER:
The waiver is not valid. Although the contracting parties may
establish such stipulations, clauses, terms and conditions as they
may deem convenient, they may not do so if such are contrary to
law, morals, good customs, public order, or public policy (Article
1306, Civil Code). The parents' waiver to file a complaint
concerning the working
-2006) conditions detrimental to the moral well-being
of their children acting in the movies is in violation of the Family
Code and Labor laws. Thus, the waiver is invalid and not binding.
The Child Labor Law is a mandatory and prohibitory law and
the rights of the child cannot be waived as it is contrary to
law and public policy.
CONFLICT OF LAWS
Appilicable Laws; laws governing contracts (1992)
X and Y entered into a contract in Australia, whereby it was
agreed that X would build a commercial building for Y in
the Philippines, and in payment for the construction, Y will
transfer and convey his cattle ranch located in the United
States in favor of X. What law would govern: a) The validity
of the contract? b) The performance of the contract? c) The
consideration of the contract?
SUGGESTED ANSWER:
(a) The validity of the contract will be governed by
Australian law, because the validity refers to the element of the
making of the contract in this case.
(Optional Addendum:"... unless the parties agreed to be
bound by another law".}
(b) The performance will be governed by the law of the
Philippines where the contract is to be performed.
(c) The consideration will be governed by the law of the
United States where the ranch is located. (Optional
Addendum:
In the foregoing cases, when the foreign law would apply, the
absence of proof of that foreign law would render Philippine law
applicable under the "eclectic theory".)
Applicable Laws; Arts 15, 16 & 17 (1998)
Juan is a Filipino citizen residing in Tokyo, Japan. State what
laws govern:
1 His capacity to contract marriage in Japan, [ 1%]
2 His successional rights as regards his deceased
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990
Filipino father's property in Texas, U.S.A. [1%] 3
The extrinsic validity of the last will and
testament which Juan executed while sojourning in
Switzerland. [2%] 4 The intrinsic validity of said
will. (1%)
SUGGESTED ANSWER:
1. Juan's capacity to contract marriage is
governed by Philippine law -i.e., the Family Code -pursuant
to Art. 15, Civil Code, which provides that our laws relating
to, among others, legal capacity of persons are binding upon
citizens of the Philippines even though living abroad.
SUGGESTED ANSWER:
2. By way of exception to the general rule of lex rei
sitae prescribed by the first paragraph of Art. 16. Civil Code,
a person's successional rights are governed by the national
law
of the decedent (2nd par.. Art. 16). Since Juan's deceased
Page 13 of 119
father was a Filipino citizen, Philippine law governs Juan's
successional rights.
ANOTHER ANSWER:
2. Juan's successional rights are governed by Philippine
law, pursuant to Article 1039 and the second paragraph of
Article 16, both of the Civil Code. Article 1039, Civil Code,
provides that capacity to succeed shall be governed by the
"law of the nation" of the decedent, i.e.. his national law.
Article 16 provides in paragraph two that the amount of
successional rights, order of succession, and intrinsic validity
of testamentary succession shall be governed by the "national
law" of the decedent who is identified as a Filipino in the
present problem.
SUGGESTED ANSWER:
3. The extrinsic validity of Juan's will is governed by (a)
Swiss law, it being the law where the will was made (Art. 17.
1st par. Civil Code), or (b) Philippine law, by implication
from the provisions of Art. 816, Civil Code, which allows
even an alien who is abroad to make a will in conformity with
our Civil Code.
SUGGESTED ANSWER:
4. The intrinsic validity of his will is governed by
Philippine law, it being his national law. (Art. 16, Civil Code)
Applicable Laws; Arts 15, 16, 17 (2002)
Felipe and Felisa, both Filipino citizens, were married in
Malolos, Bulacan on June 1, 1950. In 1960 Felipe went to the
United States, becoming a U.S. citizen in 1975. In 1980 they
obtained a divorce from Felisa, who was duly notified of the
proceedings. The divorce decree became final under
California Law. Coming back to the Philippines in 1982,
Felipe married Sagundina, a Filipino Citizen. In 2001, Filipe,
then domiciled in Los Angeles, California, died, leaving one
child by Felisa, and another one by Sagundina. He left a will
which he left his estate to Sagundina and his two children and
nothing to Felisa. Sagundina files a petition for the probate of
Felipes will. Felisa questions the intrinsic validity of the will,
arguing that her marriage to Felipe subsisted despite the
divorce obtained by Felipe because said divorce is not
recognized in the Philippines. For this reason, she claims that
the properties and that Sagundina has no successional rights.
A. Is the divorce secured by Felipe in California
recognizable and valid in the Philippines? How does it affect
Felipes marriage to Felisa? Explain. (2%).
B. What law governs the formalities of the will? Explain.
(1%)
C. Will Philippine law govern the intrinsic validity of the
will? Explain. (2%)
SUGGESTED ANSWER:
A. (1.) The divorce secured by Felipe in California is
recognizable and valid in the Philippines because he was no
longer a Filipino at that time he secured it, Aliens may obtain
divorces abroad which may be recognized in the Philippines
provided that they are valid according to their national law
(Van Dorn V. Romillo, Jr., 139 SCRA 139 [1985]; Quita v.
Court of Appeals, 300 SCRA 406 [1998]; Llorente v. Court of
Appeals, 345 SCRA 595 [2000] ).
(2). With respect to Felipe the divorce is valid, but with respect
to Felisa it is not. The divorce will not capacitate Felisa to
remarry because she and Felipe were both Filipinos at the time
of their marriage. However, in DOJ Opinion No. 134 series of
1993, Felisa is allowed to remarry because the injustice sought
to be corrected by Article 26 also obtains in her case.
SUGGESTED ANSWER:
B. The foreigner who executes his will in the
Philippines may observed the formalities described in: 1.
The Law of the country of which he is a citizen under
Article 817 of the New Civil Code, or
2. the law of the Philippines being the law of the place of
execution under Article 17 of the New Civil Code.
SUGGESTED ANSWER:
C. Philippine law will not govern the intrinsic validity of the
will. Article 16 of the New Civil Code provides that intrinsic
validity of testamentary provisions shall be governed by the
National Law of the person whose succession is under
consideration. California law will govern the intrinsic validity
of the will.
Applicable Laws; Capacity to Act (1998)
Francis Albert, a citizen and resident of New Jersey, U.S.A.,
under whose law he was still a minor, being only 20 years of
age, was hired by ABC Corporation of Manila to serve for two
years as its chief computer programmer. But after serving for
only four months, he resigned to join XYZ Corporation, which
enticed him by offering more advantageous terms. His first
employer sues him in Manila for damages arising from the
breach of his contract of employment. He sets up his minority
as a defense and asks for annulment of the contract on that
ground. The plaintiff disputes this by alleging that since the
contract was executed in the Philippines under whose law the
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
age of majority is 18 years, he was no longer a minor at the time
of perfection of the contract.

1 Will the suit prosper? [3%]

2 Suppose XYZ Corporation is impleaded as a
codefendant, what would be the basis of its liability, if any?
[2%]
SUGGESTED ANSWER:
1. The suit will not prosper under Article 15, Civil Code, New
Jersey law governs Francis Albert's capacity to act, being his
personal law from the standpoint of both his nationality and
his domicile. He was, therefore, a minor at the time he entered
into the contract.
ALTERNATIVE ANSWER:
1. The suit will not prosper. Being a U.S. national, Albert's
capacity to enter into a contract is determined by the law of the
State of which he is a national, under which he to still a minor.
This is in connection with Article 15 of the Civil Code which
embodies the said nationality principle of lex patriae. While this
principle intended to apply to Filipino citizens under that
provision, the Supreme Court in Recto v. Harden is of the view
that the status or capacity of foreigners is to be determined on
the basis of the same provision or principle, i.e., by U.S. law in
the present problem.
CIVIL LAW (Year 1990-2006)
Answers to the BAR as Arranged by Topics persons is governed by the law of his nationality, capacity
Plaintiffs argument does not hold true, because status or
capacity is not determined by lex loci contractus but by lex
patriae.
ANOTHER ANSWER:
1. Article 17 of the Civil Code provides that the forms
and solemnities of contracts, wills and other public
instruments shall be governed by the laws of the country in
which they are executed.
Since the contract of employment was executed in Manila,
Philippine law should govern. Being over 18 years old and no
longer a minor according to Philippine Law, Francis Albert
can be sued. Thus, the suit of ABC Corporation against him
for damages will prosper. SUGGESTED ANSWER:
2. XYZ Corporation, having enticed Francis Albert to
break his contract with the plaintiff, may be held liable for
damages under Art. 1314, Civil Code.
ALTERNATIVE ANSWER:
2. The basis of liability of XYZ Corporation would be
Article 28 of the Civil Code which states that: "Unfair
competition in agricultural, commercial, or industrial
enterprises or in labor through the use of force, intimidation,
deceit, machination or any other unjust, oppressive or
highhanded method shall give rise to a right of action by the
person who thereby suffers damage."
ANOTHER ANSWER:
2. No liability arises. The statement of the problem
does not in any way suggest intent, malice, or even knowledge,
on the part of XYZ Corporation as to the contractual relations
between Albert and ABC Corporation.
Applicable Laws; Capacity to Buy Land (1995)
3. What law governs the capacity of the Filipino to buy
the land? Explain your answer and give its legal basis.
SUGGESTED ANSWER:
Philippine law governs the capacity of the Filipino to buy the
land. In addition to the principle of lex rei sitae given above.
Article 15 of the NCC specifically provides that Philippine
laws relating to legal capacity of persons are binding upon
citizens of the Philippines no matter where they are.
Applicable Laws; Capacity to Contract (1995)
2. What law governs the capacity of the Japanese to sell the
land? Explain your answer and give its legal basis.
SUGGESTED ANSWER:
Japanese law governs the capacity of the Japanese to sell the
land being his personal law on the basis of an interpretation
of Art. 15, NCC.
ALTERNATIVE ANSWERS;
a) Since capacity to contract is governed by the
personal law of an individual, the Japanese seller's capacity
should be governed either by his national law (Japanese law)
or by the law of his domicile, depending upon whether Japan
follows the nationality or domiciliary theory of personal law
for its citizens.
b) Philippine law governs the capacity of the Japanese
owner in selling the land. While as a general rule capacity of
concerning transactions involving property is an exception.
Under Article 16 of the NCC the capacity of persons in
transactions involving title to property is governed by the law
of the country where the property is situated. Since the
property is in the Philippines, Philippine law governs the
capacity of the seller.
Applicable Laws; capacity to succeed (1991)
Jacob, a Swiss national, married Lourdes, a Filipina, in Berne,
Switzerland. Three years later, the couple decided to reside in
the Philippines. Jacob subsequently acquired several
properties in the Philippines with the money he inherited
from his parents. Forty years later. Jacob died intestate, and is
survived by several legitimate children and duly recognized
illegitimate daughter Jane, all residing in the Philippines.
(a) Suppose that Swiss law does not allow illegitimate children
to inherit, can Jane, who is a recognized illegitimate child,
inherit part of the properties of Jacob under Philippine law?
(b) Assuming that Jacob executed a will leaving certain
properties to Jane as her legitime in accordance with the law
of succession in the Philippines, will such testamentary
disposition be valid?
SUGGESTED ANSWER:
A. Yes. As stated in the problem. Swiss law does not
allow illegitimate children to inherit Hence, Jane cannot
inherit the property of Jacob under Philippine law.
SUGGESTED ANSWER:
B. The testamentary disposition will not be valid if it
would contravene Swill law; otherwise, the disposition would
be valid. Unless the Swiss law is proved, it would be
presumed to be the same as that of Philippine law under the
Doctrine of Processual Presumption.
Applicable Laws; contracts contrary to public
policy (1996)
Alma was hired as a domestic helper in Hongkong by the
Dragon Services, Ltd., through its local agent. She executed a
standard employment contract designed by the Philippine
Overseas Workers Administration (POEA) for overseas
Filipino workers. It provided for her employment for one
year at a salary of US$1,000.00 a month. It was submitted to
and approved by the POEA. However, when she arrived in
Hongkong, she was asked to sign another contract by
Dragon Services, Ltd. which reduced her salary to only
US$600.00 a month. Having no other choice, Alma signed
the contract but when she returned to the Philippines, she
demanded payment of the salary differential of US$400.00 a
month. Both Dragon Services, Ltd. and its local agent
claimed that the second contract is valid under the laws of
Hongkong, and therefore binding on Alma. Is their claim
correct? Explain.
SUGGESTED ANSWER:
CIVIL LAW (Year 1990-2006)
Their claim is not correct. A contract is the law between the
parties but the law can disregard the contract if it is contrary
to public policy. The provisions of the 1987 Constitution on
the protection of labor and on social justice (Sec. 10. Art II)
our Courts. (Cadalin v. POEA. 238 SCRA 762)
ALTERNATIVE ANSWERS;
a) Their claim is not correct. Assuming that the second
contract is binding under Hongkong law, such second
contract is invalid under Philippine law which recognizes as
valid only the first contract. Since the case is being litigated in
the Philippines, the Philippine Court as the forum will not
enforce any foreign claim obnoxious to the forum's public
policy. There is a strong public policy enshrined in our
Constitution on the protection of labor. Therefore, the
second contract shall be disregarded and the first contract will
be enforced. (Cadalin v. POEA, 238 SCRA 762).
b) No, their claim is not correct. The second contract
executed in Hongkong, partakes of the nature of a waiver that
is contrary to Philippine law and the public policy governing
Filipino overseas workers. Art. 17, provides that our
prohibitive laws concerning persons, their acts, or their
property or which have for their object public order, public
policy and good customs shall not be rendered ineffective by
laws or conventions agreed upon in a foreign country.
Besides, Alma's consent to the second contract was vitiated
by undue influence, being virtually helpless and under
financial distress in a foreign country, as indicated by the
given fact that she signed because she had no choice.
Therefore, the defendants claim that the contract is valid
under Hongkong law should be rejected since under the
DOCTRINE OF PROCESSUAL PRESUMPTION a foreign
law is deemed similar or identical to Philippine law in the
absence of proof to the contrary, and such is not mentioned
in the problem as having been adduced.
Applicable Laws; Contracts of Carriage (1995)
On 8 December 1991 Vanessa purchased from the Manila
office of Euro-Aire an airline ticket for its Flight No. 710
from Dallas to Chicago on 16 January 1992. Her flight
reservation was confirmed. On her scheduled departure
Vanessa checked in on time at the Dallas airport. However, at
the check-in counter she discovered that she was waitlisted
with some other passengers because of intentional
overbooking, a Euro-Aire policy and practice. Euro-Alre
admitted that Vanessa was not advised of such policy when
she purchased her plane ticket. Vanessa was only able to fly
two days later by taking another airline.
Vanessa sued Euro-Aire in Manila for breach of contract and
damages. Euro-Aire claimed that it cannot be held liable for
damages because its practice of overbooking passengers was
allowed by the U.S. Code of Federal Regulations. Vanessa on
the other hand contended that assuming that the U.S. Code
embody a public policy of the Philippines. Since the
application of Hongkong law in this case is in violation of
Answers to the BAR as Arranged by Topics that public
policy, the application shall be disregarded by
Court of Appeals (G.R No. 104235, Nov. 10, 1993) the
of Federal Regulations allowed Intentional overbooking, the
airline company cannot invoke the U.S. Code on the ground
that the ticket was purchased in Manila, hence, Philippine law
should apply, under which Vanessa can recover damages for
breach of contract of carriage. Decide. Discuss fully.
SUGGESTED ANSWER:
Vanessa can recover damages under Philippine law for breach
of contract of carriage, Philippine law should govern as the
law of the place where the plane tickets were bought and the
contract of carriage was executed. In Zalamea v.
Supreme Court applied Philippine law in recovery of damages
for breach of contract of carriage for the reason that it is the
law of the place where the contract was executed.
ALTERNATIVE ANSWER:
If the violation of the contract was attended with bad faith,
there is a ground to recover moral damages. But since there
was a federal regulation which was the basis of the act
complained of, the airline cannot be in bad faith. Hence, only
actual damages can be recovered. The same is true with regards
to exemplary damages.
Applicable Laws; Labor Contracts (1991)
A. The Japan Air Lines (JAL), a foreigner corporation
licensed to do business in the Philippines, executed in Manila
a contract of employment with Maritess Guapa under which
the latter was hired as a stewardess on the aircraft flying the
Manila-Japan-Manila route. The contrast specifically provides
that (1) the duration of the contract shall be two (2) years, (2)
notwithstanding the above duration, JAL may terminate the
agreement at any time by giving her notice in writing ten (10)
days in advance, and (3) the contract shall be construed as
governed under and by the laws of Japan and only the court in
Tokyo, Japan shall have the jurisdiction to consider any matter
arising from or relating to the contract.
JAL dismissed Maritess on the fourth month of her
employment without giving her due notice. Maritess then
filed a complaint with the Labor Arbiter for reinstatement,
backwages and damages. The lawyer of JAL contends that
neither the Labor Arbiter nor any other agency or court in the
Philippines has jurisdiction over the case in view of the above
provision (3) of the contract which Maritess voluntarily
signed. The contract is the law between her and JAL. Decide
the issue.
B. Where under a State's own conflicts rule that
domestic law of another State should apply, may the courts of
the former nevertheless refuse to apply the latter? If so, under by determinations or conventions agreed upon in a foreign
what circumstance? country."
SUGGESTED ANSWER:
Accordingly, a state's own conflict of laws rule may,
A, Labor Legislations are generally intended as expressions of exceptionally be inapplicable, given public policy
public policy on employer-employee relations. The contract considerations by the law of the forum.
therefore, between Japan Air Lines (JAL) and Maritess may
apply only to the extent that its provisions are not inconsistent Going into the specific provisions of the contract in question,
with Philippine labor laws intended particularly to protect I would rule as follows:
employees. Maris then returned to the Philippines and in a civil ceremony
celebrated in Cebu City according to the formalities of
Under the circumstances, the dismissal of Maritess without Philippine law, she married her former classmate Vincent
complying with Philippine Labor law would be invalid and any likewise a Filipino citizen. a) Was the marriage of Maris and
stipulation in the contract to the contrary is considered void. Johnson valid when celebrated? Is their marriage still validly
Since the law of the forum in this case is the Philippine law the existing now? Reasons.
issues should-be resolved in accordance with Philippine law.
SUGGESTED ANSWER:
B. The third paragraph of Art. 17 of the Civil Code provides (a) The marriage of Mans and Johnson was valid when
that: celebrated because all marriages solemnized outside the
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
1 The duration of the contract is not opposed to Philippine law and it can therefore be valid as stipulated; Their marriage no
longer validly subsists, because it has been 2 The second provision to the effect that notwithstanding dissolved by the absolute
divorce validly obtained by Johnson duration, Japan Air Lines (JAL) may terminate her employment is which capacitated Maris
to remarry (Art. 26. Family Code).
invalid, being inconsistent with our Labor laws;
3 That the contract shall be construed as governed under and
by the laws of Japan and only the courts of Tokyo, Japan shall have Applicable Laws; laws governing marriages (2003)
jurisdiction, is invalid as clearly opposed to the aforecited third Gene and Jane, Filipino, met and got married in England paragraph
of Arts. 17 and 1700 of the Civil Code, which provides: while both were taking up post -graduate courses there. A few
"Prohibitive laws concerning persons, their acts or Philippines (Tokyo) in accordance with the laws in force in the
property, and those which have for their object public country where they are solemnized (Japan), and valid there as
order, public policy and good customs shall not be such, are also valid in the Philippines.
rendered ineffective by laws or judgments promulgated, or
"Art. 1700. The relations between capital and labor After Maris received the final judgment of divorce, she married
are not merely contractual. They are so impressed her childhood sweetheart Pedro, also a Filipino citizen, in a
with public interest that labor contracts must yield to religious ceremony in Cebu City, celebrated according to the
the common good. Therefore, such contracts are formalities of Philippine law. Pedro later left for the United
subject to the special laws on labor unions, collective States and became naturalized as an American citizen. Maris
bargaining, strikes and lockouts, closed shop, wages, followed Pedro to the United States, and after a serious quarrel,
working conditions, hours of labor and similar Maris filed a suit and obtained a divorce decree issued by the
subjects." court in the state of Maryland.
years after their graduation, they decided to annul their
ALTERNATIVE ANSWER; marriage. Jane filed an action to annul her marriage to Gene in
A. When a contract has a foreign element such as in the factual England on the ground of latters sterility, a ground for
setting stated in the problem where one of the parties is a annulment of marriage in England. The English court decreed
foreign corporation, the contract can be sustained as valid the marriage annulled. Returning to the Philippines, Gene asked
particularly the stipulation expressing that the contract is you whether or not he would be free to marry his former
governed by the laws of the foreign country. Given this girlfriend. What would your legal advice be? 5%
generally accepted principle of international law, the contract
between Maritess and JAL is valid and it should therefore be SUGGESTED ANSWER:
enforced. No, Gene is not free to marry his former girlfriend. His
marriage to Jane is valid according to the forms and solemnities
Applicable Laws; laws governing marriages (1992) of British law, is valid here (Article 17, 1st par., NCC).
In 1989, Maris, a Filipino citizen, married her boss Johnson, an However, since Gene and Jane are still Filipinos although living
American citizen, in Tokyo in a wedding ceremony celebrated in England, the dissolution of their marriage is still governed
according to Japanese laws. One year later, Johnson returned by Philippine law (Article 15, NCC). Since, sterility is not one
to his native Nevada, and he validly obtained in that state an of the grounds for the annulment of a marriage under Article
absolute divorce from his wife Maris. 45 of the Family Code, the annulment of Genes marriage to
Jane on that ground is not valid in the
CIVIL LAW (Year 1990-2006)

Philippines (Article 17, NCC) ALTERNATIVE

ANSWER:
Yes, Gene is free to marry his girlfriend because his marriage
was validly annulled in England. The issue of whether or not
a marriage is voidable, including the grounds therefore, is
governed by the law of the place where the marriage was
solemnized (lex loci celebrationis). Hence, even if sterility is
not a ground to annul the marriage under the Philippine law,
the marriage is nevertheless voidable because sterility makes
the marriage voidable under English law. Therefore,
annulment of the marriage in England is valid in the
Philippines.

Applicable Laws; Sale of Real Property (1995)

While in Afghanistan, a Japanese by the name of Sato sold to
Ramoncito, a Filipino, a parcel of land situated in the
Philippines which Sato inherited from his Filipino mother.
1. What law governs the formality in the execution of the
contract of sale? Explain your answer and give its legal basis.

SUGGESTED ANSWER:

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990
Under Art. 16 par. 1, NCC, real property is subject to the
law of the country where it is situated. Since the property is
situated in the Philippines, Philippine law applies. The rule of
lex rei sitae in Article 16 prevails over lex loci contractu in
Article 17 of the NCC.
ALTERNATIVE ANSWER:
Afghanistan law governs the formal requirements of the
contract since the execution is in Afghanistan. Art. 17 of the
Civil Code provides that the forms and solemnities of
contracts, wills, and other public instruments shall be governed
by the laws of the country in which they are executed. However,
if the contract was executed before the diplomatic or consular
officials of the Republic of the Philippines in Afghanistan,
Philippine law shall apply.
Applicable Laws; Succession; Intestate &
Testamentary
(2001)
Alex was born a Filipino but was a naturalized Canadian citizen
at the time of his death on December 25, 1998. He left behind
a last will and testament in which he bequeathed all his
properties, real and personal, in the Philippines to his
acknowledged illegitimate Fillpina daughter and nothing to his
two legitimate Filipino sons. The sons sought the annulment of
the last will and testament on the ground that it deprived them
of their legitimes but the daughter was able to prove that there
were no compulsory heirs or legitimes under
Canadian law. Who should prevail? Why? (5%) SUGGESTED
ANSWER:
The daughter should prevail because Article 16 of the New
Civil Code provides that intestate and testamentary succession
shall be governed by the national law of the person whose
succession is under consideration.
Applicable Laws; Sucession of Aliens (1995)
Michelle, the French daughter of Penreich, a German national,
died in Spain leaving real properties in the Philippines as well
as valuable personal properties in Germany.
1. What law determines who shall succeed the
deceased? Explain your answer and give its legal basis.
2. What law regulates the distribution of the real
properties in the Philippines? Explain your answer and give its
legal basis.
3. What law governs the distribution of the personal
properties in Germany? Explain your answer and give its legal
basis.
SUGGESTED ANSWER:
Assuming that the estate of the decedent is being settled in the
Philippines)
1. The national law of the decedent (French law) shall
govern in determining who will succeed to his estate. The legal
basis is Art. 16 par. 2, NCC.
ALTERNATIVE ANSWER:
French law shall govern the distribution of his real properties
in the Philippines except when the real property is land which
may be transmitted to a foreigner only by hereditary succession.
SUGGESTED ANSWER:
-2006)
3. The distribution of the personal properties in Germany
2. The distribution of the real properties in the
Philippines shall be governed by French law. The legal basis is
Art. 16,
NCC).
SUGGESTED ANSWER:
shall be governed by French law. The legal basis is Art. 16,
NCC).
Applicable Laws; Wills executed abroad (1993)
A, a Filipino, executed a will in Kuwait while there as a
contract worker. Assume that under the laws of Kuwait, it is
enough that the testator affix his signature to the presence of
two witnesses and that the will need not be acknowledged
before a notary public. May the will be probated in the
Philippines?
SUGGESTED ANSWER:
Yes. Under Articles 815 and 17 of the Civil Code, the formality
of the execution of a will is governed by the law of the place of
execution. If the will was executed with the formalities
prescribed by the laws of Kuwait and valid there as such, the
will is valid and may be probated in the
Philippines.
Definition; Cognovit; Borrowing Statute;
Characterization(1994)
In Private International Law (Conflict of Laws) what is:
1} Cognovit? 2) A borrowing statute? 3)
Characterization?
SUGGESTED ANSWER:
1) a) COGNOVIT is a confession of judgment whereby a
portion of the complaint is confessed by the defendant who
denies the rest thereof (Philippine law Dictionary, 3rd Ed.)
(Ocampo v. Florenciano, L-M 13553, 2/23/50).
b) COGNOVIT is a "statement of confession"
Oftentimes, it is referred to as a "power of attorney" or simply
as a "power", it is the written authority of the debtor and his
direction to the clerk of the district court, or justice of the peace
to enter judgment against the debtor as stated therein. (Words
and Phrases, vol. 7, pp. 115-166).
c) COGNOVIT is a plea in an action which
acknowledges that the defendant did undertake and promise as
the plaintiff in its declaration has alleged, and that it cannot
deny that it owes and unjustly detains from the plaintiff the sum
claimed by him in his declaration, and consents that judgment
be entered against the defendant for a certain sum. [Words and
Phrases, vol. 7, pp. 115-166).
d) COGNOVIT is a note authorizing a lawyer for
confession of judgment by defendant.
2) "BORROWING STATUTE" -Laws of the state or
jurisdiction used by another state in deciding conflicts
questioned involved in the choice of law (Black's Law
Dictionary, 5th ed. 1979).
3) a) "CHARACTERIZATION" is
otherwise called
"classification" or "qualification." It is the process of assigning
a disputed question to its correct legal category (Private
International Law, Salonga).
b) "CHARACTERIZATION" is a process in determining
under what category a certain set of facts or rules fall. (Paras,
Conflict of Laws, p. 94. 1984 ed.)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Definition; forum non-conveniens; long-arm statute
(1994)
1) What is the doctrine of Forum non conveniens?
2) What is a "long arm statute"?
SUGGESTED ANSWER:
1) a) FORUM NON CONVENIENS is a principle in Private
International Law that where the ends of justice strongly
indicate that the controversy may be more suitably tried
elsewhere, then jurisdiction should be declined and the parties
relegated to relief to be sought in another forum. (Moreno.
Philippine Law Dictionary, p. 254, 1982 ed.).
b) Where in a broad sense the ends of justice strongly
indicate that the controversy may be more suitably tried
elsewhere, then jurisdiction should be declined and the parties
relegated to relief to be sought in another forum. (Handbook
on Private International Law, Aruego).
c) FORUM NON CONVENIENS means simply that a
court may resist imposition upon its jurisdiction even when
jurisdiction is authorized by the letter of a general venue statute.
(Salonga. Private International Law. p, 51. 1967 ed.)
d) Forum non conveniens is a doctrine whereby a court
of law having full Jurisdiction over a case brought in a proper
venue or district declines to determine the case on its merits
because Justice would be better served by the trial over the case
in another jurisdiction. (Webster's Dictionary)
SUGGESTED ANSWER:
(2} a) LONG ARM STATUTE is a legislative act which
provides for personal jurisdiction, via substituted service or
process, over persons or corporations which are nonresidents
of the state and which voluntarily go into the state, directly or
by agent or communicate with persons in the state for limited
purposes, inactions which concern claims relating to
performance or execution of those purposes (Black's Law
Dictionary, 5th Ed. 1979).
b) Long arm statute refers simply to authorized substituted
service.
Divorce; effect of divorce granted to former
Filipinos; Renvoi Doctrine (1997)
In 1977, Mario and Clara, both Filipino citizens, were married
in the Philippines. Three years later, they went to the United
States of America and established their residence in San
Francisco, California. In 1987, the couple applied for, and were
granted, U.S. citizenship. In 1989, Mario, claiming to have been
abandoned by Clara, was able to secure a decree of divorce in
Reno, Nevada, U.S.A.
In 1990, Mario returned to the Philippines and married Juana
who knew well Mario's past life.
(a) Is the marriage between Mario and Juana
(valid? b) Would the renvoi doctrine have any relevance to the
case?
SUGGESTED ANSWER:
(a) Yes, because Phil law recognizes the divorce between
Mario and Clara as valid.
SUGGESTED ANSWER:
(b) No, The renvoi doctrine is relevant in cases where one country
applies the domiciliary theory and the other the
nationality theory, and the issue involved is which of the laws of the
two countries should apply to determine the order of succession, the
amount of successional rights, or, the intrinsic validity of
testamentary provisions. Such issue is not involved in this case.
ALTERNATIVE ANSWER:
Yes. "Renvoi" - which means "referring back" is relevant
because here, we are applying U.S. law to Mario, being already
its citizen, although the formalities of the second marriage will
be governed by Philippine law under the principle of lex loci
celebrationis.
Domiciliary theory vs. Nationality Theory (2004)
Distinguish briefly but clearly between: Domiciliary theory and
nationality theory of personal law. (5%)
SUGGESTED ANSWER:
DOMICILIARY THEORY posits that the personal status and
rights of a person are governed by the law of his domicile or
the place of his habitual residence. The NATIONALITY
THEORY, on the other hand, postulates that it is the law of
the person's nationality that governs such status and rights
Forum Non Conveniens & Lex Loci Contractus
(2002)
Felipe is a Filipino citizen. When he went to Sydney for
vacation, he met a former business associate, who proposed to
him a transaction which took him to Moscow. Felipe brokered
a contract between Sydney Coals Corp. (Coals), an Australian
firm, and Moscow Energy Corp. (Energy), a Russian firm, for
Coals to supply coal to Energy on a monthly basis for three
years. Both these firms were not doing, and still do not do,
business in the Philippines. Felipe shuttled between Sydney and
Moscow to close the contract. He also executed in Sydney a
commission contract with Coals and in Moscow with Energy,
under which contracts he was guaranteed commissions by both
firms based on a percentage of deliveries for the three-year
period, payable in Sydney and in Moscow, respectively, through
deposits in accounts that he opened in the two cities. Both
firms paid Felipe his commission for four months, after which
they stopped paying him. Felipe learned from his contacts, who
are residents of Sydney and Moscow, that the two firms talked
to each other and decided to cut him off. He now files suit in
Manila against both Coals and Energy for specific performance.
A. Define or explain the principle of lex loci
contractus . (2%)
B. Define or explain the rule of forum non
conveniens (3%)
C. Should the Philippine court assume jurisdiction
over the case? Explain. (5%) SUGGESTED
ANSWER:
A. LEX LOCI CONTRACTUS may be understood in two
senses, as follows:
(1) It is the law of the place where contracts, wills, and
other public instruments are executed and governs their
forms and solemnities , pursuant to the first
paragraph,
(2)Article 17 of the New Civil Code; or It is the proper
law of the contract; e.i., the system of
law intended to govern the entire contract, including its
essential requisites, indicating the law of the place with
which the contract has its closest connection or
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) where the main elements of the contract
converge. As country of which they are citizens. Since their marriage is
illustrated by Zalamea v. Court of Appeals (228 SCRA 23
[1993]), it is the law of the place where the airline ticket
was issued, where the passengers are nationals and
residents of, and where the defendant airline company
maintained its office.
ALTERNATIVE ANSWER:
A. Under the doctrine of lex loci contractus, as a general tourist visa. While in this country, she fell in love with and
rule, the law of the place where a contract is made or entered married a Filipino doctor. Her tourist visa having been expired
into governs with respect to its nature and validity, obligation
and interpretation. This has been said to be the rule even
though the place where the contract was made is different
from the place where it is to be performed, and particularly so, claiming that she is already a Filipino Citizen by her marriage to
if the place of the making and the place of performance are the
same (United Airline v. CA, G.R. No. 124110, April 20, 2001).
SUGGESTED ANSWER:
B. FORUM NON CONVENIENS means that a court
has discretionary authority to decline jurisdiction over a cause
of action when it is of the view that the action may be justly
and effectively adjudicated elsewhere.
SUGGESTED ANSWER:
C. No, the Philippine courts cannot acquire jurisdiction
over the case of Felipe. Firstly, under the rule of forum non
conveniens, the Philippine court is not a convenient forum as
all the incidents of the case occurred outside the Philippines.
Neither are both Coals and Energy doing business inside the
Philippines. Secondly, the contracts were not perfected in the
Philippines. Under the principle of lex loci contractus, the law
of the place where the contract is made shall apply. Lastly, the
Philippine court has no power to determine the facts
surrounding the execution of said contracts. And even if a
proper decision could be reached, such would have no biding
effect on Coals and Energy as the court was not able to acquire
jurisdiction over the said corporations. (Manila Hotel Corp. v.
NLRC. 343 SCRA 1, 1314[2000])
Nationality Theory (2004)
PH and LV are HK Chinese. Their parents are now Filipino
citizens who live in Manila. While still students in MNS State,
they got married although they are first cousins. It appears that
both in HK and in MNS State first cousins could marry legally.
They plan to reside and set up business in the Philippines. But
they have been informed, however, that the marriage of first
cousins here is considered void from the beginning by reason
of public policy. They are in a dilemma. They dont want to
break Philippine law, much less their marriage vow. They seek
your advice on whether their civil status will be adversely
affected by Philippine domestic law? What is your advice? (5%)
SUGGESTED ANSWER:
My advise is as follows: The civil status of' PH and LV will not be
adversely affected by Philippine law because they are nationals of
Hong Kong and not Filipino citizens.Being foreigners, their status,
conditions and legal capacity in the Philippines are governed by the law
of Hong Kong, the
valid under Hong Kong law, it shall be valid and respected in the
Philippines.
Naturalization (2003)
Miss Universe, from Finland, came to the Philippines on a
and after the maximum extension allowed therefore, the Bureau
of Immigration and Deportation (BID) is presently demanding
that she immediately leave the country but she refuses to do so,
a Filipino citizen. Can the BID still order the deportation of
Miss Universe? Explain. 5%
SUGGESTED ANSWER:
Yes, the BID can order the deportation of Miss Universe. The
marriage of an alien woman to a Filipino does not automatically
make her a Filipino Citizen. She must first prove in an
appropriate proceeding that she does not have any
disqualification for Philippine citizenship. (Yung Uan Chu v.
Republic of the Philippines, 158 SCRA 593 [1988]). Since
Miss Universe is still a foreigner, despite her marriage to a
Filipino doctor, she can be deported upon expiry of her
allowable stay in the Philippines.
ANOTHER SUGGESTED ANSWER:
No, the Bureau of Immigration cannot order her deportation.
An alien woman marrying a Filipino, native-born or naturalized,
becomes ipso facto a Filipino if she is not disqualified to be a
citizen of the Philippines (Mo Ya Lim v
Commission of Immigration, 41 SCRA 292 [1971]), (Sec 4,
Naturalization Law). All that she has to do is prove in the
deportation proceeding the fact of her marriage and that she is
not disqualified to become a Filipino Citizen.
ANOTHER SUGGESTED ANSWER:
It depends. If she is disqualified to be a Filipino citizen, she
may be deported. If she is not disqualified to be a Filipino
citizen, she may not be deported. An alien woman who marries
a Filipino citizen becomes one. The marriage of Miss Universe
to the Filipino doctor did not automatically make her a Filipino
citizen. She still has to prove that she is not disqualified to
become a citizen.
Theory; significant relationships theory (1994)
Able, a corporation domiciled in State A, but, doing business in
the Philippines, hired Eric, a Filipino engineer, for its project in
State B. In the contract of employment executed by the parties
in State B, it was stipulated that the contract could be
terminated at the company's will, which stipulation is allowed
in State B. When Eric was summarily dismissed by Able, he
sued Able for damages in the Philippines. Will the Philippine
court apply the contractual stipulation?
SUGGESTED ANSWER:
a) Using the "SIGNIFICANT RELATIONSHIPS
THEORY", there are contacts significant to the Philippines.

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) protection of the rights of Filipino laborers,
the court can natural mother as her middle name. The Court has ruled
Among these are that the place of business is the Philippines,
the employee concerned is a Filipino and the suit was filed in
the Philippines, thereby justifying the application of Philippine
law. In the American Airlines case the Court held that when
what is involved is PARAMOUNT STATE INTEREST such
as the disregard choice of forum and choice of law. Therefore
the Philippine Court should not apply the stipulation in
question.
ALTERNATIVE ANSWER:
b) No, lex fori should be applied because the suit is filed
in Philippine courts and Eric was hired in the Philippines. The
Philippine Constitution affords full protection to labor and the
stipulation as to summary dismissal runs counter to our
fundamental and statutory laws.
Torts; Prescriptive Period (2004)
In a class suit for damages, plaintiffs claimed they suffered
injuries from torture during martial law. The suit was filed
upon President EMs arrival on exile in HI, a U.S. state. The
court in HI awarded plaintiffs the equivalent of P100 billion
under the U.S. law on alien tort claims. On appeal, EMs
Estate raised the issue of prescription. It argued that since
said U.S. law is silent on the matter, the court should apply:
(1) HIs law setting a two-year limitation on tort claims; or (2)
the Philippine law which appears to require that claims for
personal injury arising from martial law be brought within one
year.
Plaintiffs countered that provisions of the most analogous
federal statute, the Torture Victims Protection Act, should be
applied. It sets ten years as the period for prescription.
Moreover, they argued that equity could toll the statute of
limitations. For it appeared that EM had procured
Constitutional amendments granting himself and those acting
under his direction immunity from suit during his tenure.
In this case, has prescription set in or not? Considering the
differences in the cited laws, which prescriptive period should
be applied: one year under Philippine law, two years under HIs
law, ten years under U.S. federal law, or none of the
above? Explain. (5%)
SUGGESTED ANSWER:
The US Court will apply US law, the law of the Jorum, in
determining the applicable prescriptive period. While US law
is silent on this matter, the US Court will not apply Philippine
law in determining the prescriptive period. It is generally
affirmed as a principle in private international law that
procedural law is one of the exceptions to the application of
foreign law by the forum. Since prescription is a matter of
procedural law even in Philippine jurisprudence, (Codaltn v.
POEA/ JVLRC/Broum and Root International, 238 SCRA
721 [1994]), the US Court will apply either HI or Federal law
in determining the applicable prescriptive period and not
Philippine law. The Restatement of American law affirms this
principle.
ADOPTION
Adoption; Use of Surname of her Natural Mother
(2006)
May an illegitimate child, upon adoption by her natural father, use
the surname of her natural mother as the middle name?
(2.5%)
SUGGESTED ANSWER: Yes, an illegitimate child, upon adoption
by her natural father, can use the surname of her that there is no
law prohibiting an illegitimate child adopted by her natural father
to use, as middle name, her mother's surname. What is not
prohibited is allowed. After all, the use of the maternal name as
the middle name is in accord with Filipino culture and customs
and adoption is intended for the benefit of the adopted [In re:
Adoption of Stephanie Nathy Astorga Garcia, G.R. No. 148311,
March 31, 2005; Rabuya, The Law on Persons and Family
Relations, p. 613].
Inter-Country Adoption; Formalities (2005)
Hans Berber, a German national, and his Filipino wife, Rhoda,
are permanent residents of Canada. They desire so much to
adopt Magno, an 8-year old orphaned boy and a baptismal
godson of Rhoda. Since the accidental death of Magno's
parents in 2004, he has been staying with his aunt who,
however, could hardly afford to feed her own family.
Unfortunately, Hans and Rhoda cannot come to the
Philippines to adopt Magno although they possess all the
qualifications as adoptive parents.
Is there a possibility for them to adopt Magno? How
should they go about it? (5%) SUGGESTED
ANSWER:
Yes, it is possible for Hans and Rhoda to adopt Magno.
Republic Act No. 8043 or the Inter-Country Adoption Act,
allows aliens or Filipinos permanently residing abroad to apply
for inter-country adoption of a Filipino child. The law
however requires that only legally free child, or one who has
been voluntarily or involuntarily committed to the DSWD or
any of its accredited agencies, may be subject of intercountry
adoption. The law further requires that aside from possessing
all the qualifications, the adoptive parents must come from a
country where the Philippines has diplomatic relations and
that the government maintains a similarly accredited agency
and that adoption is allowed under the national law of the
alien. Moreover, it must be further shown that all possibilities
for a domestic adoption have been exhausted and the inter-
country adoption is best for the interest of the child.
Hans and Rhoda have to file an application to adopt Magno,
either with the Regional Trial Court having jurisdiction over
Magno or with the Inter-Country Adoption Board in Canada.
Hans and Rhoda will then undergo a trial custody for six (6)
months from the time of placement. It is only after the lapse of
the trial custody that the decree of adoption can be issued.
Parental Authority; Rescission of Adoption (1994)
In 1975, Carol begot a daughter Bing, out of wedlock.
When Bing was ten years old, Carol gave her consent for
Bing's legal adoption by Norma and Manuel, which was
granted by the court in 1990. In 1991, Carol learned that
Norma and Manuel were engaged in a call-girl-ring that
catered to tourists. Some of the girls lived with Norma and
Manuel. Carol got Bing back, who in the first place wanted
to return to her natural mother. 1) Who has a better right
to the custody of Bing, Carol or Norma? 2) Aside from
taking physical custody of Bing, what legal actions can
Carol take to protect Bing?
 CIVIL LAW
Answers to the BAR as Arranged by Topics
SUGGESTED ANSWER:
1) a) It depends on whether or not Bing was at least 18 years
old at the time Carol asserts the prerogative to take custody of
Bing. If she was at least 18 years old, then she is no longer
under parental authority and neither Carol nor Norma can
assert the prerogative to take custody. However, if she was less
than 18 years old, then Norma has a better right since the
adoption by Norma of Bing terminates the parental authority
of Carol over Bing.
b) The natural mother, Carol, should have the better right in
light of the principle that the child's welfare is the paramount
consideration in custody rights. Obviously, Bing's continued
stay in her adopting parents' house, where interaction with the
call girls is inevitable, would be detrimental to her moral and
spiritual development. This could be the reason for Bing's
expressed desire to return to her natural mother. It should be
noted, however, that Bing is no longer a minor, being 19 years
of age now. It is doubtfu1 that a court can still resolve the
question of custody over one who is sui juris and not otherwise
incapacitated.
SUGGESTED ANSWER:
2) a) On the assumption that Bing is still a minor or otherwise
incapacitated, Carol may petition the proper court for
resolution or rescission of the decree of adoption on the
ground that the adopting parents have exposed, or are
exposing, the child to corrupt influence, tantamount to giving
her corrupting orders or examples. She can also ask for the
revesting in her of parental authority over Bing. If However,
Bing is already 19 years of age and therefore no longer a minor,
it is not Carol but Bing herself who can petition the court for
judicial rescission of the adoption, provided she can show a
ground for disinheritance of an ascendant.
b) Carol may file an action to deprive Norma of parental
authority under Article 231 of the Family Code or file an
action for the rescission of the adoption under Article 191 in
relation to Article 231 (2) of the Family Code.
Qualification of Adopter (2005)
In 1984, Eva, a Filipina, went to work as a nurse in the USA.
There, she met and fell in love with Paul, an American citizen,
and they got married in 1985. Eva acquired American
citizenship in 1987. During their sojourn in the Philippines in
1990, they filed a joint petition for the adoption of Vicky, a 7-
year old daughter of Eva's sister. The government, through the
Office of the Solicitor General, opposed the petition on the
ground that the petitioners, being both foreigners, are
disqualified to adopt Vicky.
a) Is the government's opposition tenable? Explain.
(2%) SUGGESTED
ANSWER:
The government's position is untenable. Under paragraph 3,
Article 184 of the Family Code, an alien, as a general rule
cannot adopt. However, an alien who is a former Filipino
citizen and who seeks to adopt a relative by consanguinity is
qualified to adopt, (par. 3[a], Art. 184, Family Code)
(Year 1990-2006)
In the given problem, Eva, a naturalized American citizen
would like to adopt Vicky, a 7-year old daughter of her sister.
Thus, under the above-cited provision, Eva is qualified to
adopt Vicky.
b) Would your answer be the same if they sought to adopt
Eva's illegitimate daughter? Explain. (2%) SUGGESTED
ANSWER:
My answer will still be the same. Paragraph 3(a) of Article 184
of the Family Code does not make any distinction. The
provision states that an alien who is a former Filipino citizen is
qualified to adopt a relative by consanguinity.
c) Supposing that they filed the petition to adopt Vicky in
the year 2000, will your answer be the same? Explain.
(2%) SUGGESTED
ANSWER:
Yes, my answer will still be the same. Under Sec. 7(b), Art. III
of the New Domestic Adoption Act, an alien who possesses all
the qualifications of a Filipino national who is qualified to adopt
may already adopt provided that his country has diplomatic
relations with the Philippines, that he has been living in the
Philippines for at least three (3) continuous years prior to the
filing of the application for adoption and maintains such
residence until the adoption decree is entered, that he has been
certified by his diplomatic or consular office or any appropriate
government agency that he has the legal capacity to adopt in his
country, and that his government allows the adoptee to enter his
country as his adopted child.
Qualification of Adopter; Applicable Law (2001)
A German couple filed a petition for adoption of a minor
Filipino child with the Regional Trial Court of Makati under the
provisions of the Child and Youth Welfare Code which allowed
aliens to adopt. Before the petition could be heard, the Family
Code, which repealed the Child and Youth Welfare Code, came
into effect. Consequently, the Solicitor General filed a motion
to dismiss the petition, on the ground that the Family Code
prohibits aliens from adopting. If you were the judge, how will
you rule on the motion? (5%)
SUGGESTED ANSWER:
The motion to dismiss the petition for adoption should be
denied. The law that should govern the action is the law in force
at the time of filing of the petition. At that time, it was the Child
and Youth Welfare Code that was in effect, not the Family
Code. Petitioners have already acquired a vested right on their
qualification to adopt which cannot be taken away by the
Family Code. (Republic v. Miller G.R. No. 125932, April 21,
1999, citing Republic v. Court of Appeals,
205 SCRA 356) ALTERNATIVE
ANSWER:
The motion has to be granted. The new law shall govern their
qualification to adopt and under the new law, the German
couple is disqualified from adopting. They cannot claim that
they have already acquired a vested right because adoption is
not a right but a mere privilege. No one acquires a vested right
on a privilege.
 CIVIL LAW
[Note: If the examinee based his answer on the current law, RA 8552, his answer
should be considered correct. This question is based on the repealed provision of the
Family Code on Adoption.]
Qualifications of Adopter (2000)
Answers to the BAR as Arranged by Topics
Sometime in 1990, Sarah, born a Filipino but by then a
naturalized American citizen, and her American husband Tom,
filed a petition in the Regional Trial Court of Makati, for the
adoption of the minor child of her sister, a Filipina.
Can the petition be granted? (5%) SUGGESTED
ANSWER:
(per dondee) It depends. Rules on Adoption effective August
who is emotionally and psychologically capable of caring accident at sea, followed to the grave a year later by his sick
for children, father, BM, Sr. Each left a sizable estate consisting of bank at least sixteen (16) years older than the adoptee,
deposits, lands and buildings in Manila. May the adopted and who is in a position to support and care for his children child,
YV, inherit from BM, Jr.? May she also inherit from
22, 2002 provides the following; SEC. 4. Who may adopt.
The following may adopt: Any Filipino Citizen
of legal age,
in keeping with the means of the family.
The requirement of a 16-year difference between the age of the
adopter and adoptee may be waived when the adopter is the
biological parent of the adoptee or is the spouse of the adoptees
parent;
Any Alien possessing the same qualifications as above-stated
for Filipino nationals: Provided, a) That his country has
diplomatic relations with the
Republic of the Philippines,
b) that he has been living in the Philippines for at least three
(3) continuous years prior to the filing of the petition for
adoption and maintains such residence until the adoption decree
is entered,
c) that he has been certified by his diplomatic or consular
office or any appropriate government agency to have the legal
capacity to adopt in his country,
d) and that his government allows the adoptee to enter his
country as his adopted child.
Provided, further, That the requirements on residency and
certification of the aliens qualification to adopt in his country
may be waived for the following: a) a former Filipino citizen
who seeks to adopt a relative within the fourth (4th) degree of
consanguinity or affinity; or b) one who seeks to adopt the
legitimate child of his Filipino spouse; or
c) one who is married to a Filipino citizen and seeks to adopt
jointly with his spouse a relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouse.
Qualifications of Adopter (2003)
Lina, a former Filipina who became an American citizen shortly
after her marriage to an American husband, would like to adopt
in the Philippines, jointly with her husband, one of her minor
brothers. Assuming that all the required consents have been
(Year 1990-2006)
in possession of full civil capacity and legal rights,
of good moral character,
has not been convicted of any crime involving moral
turpitude;
under Sec. 7(b) of RA8552. The Supreme Court has held in
several cases that when husband and wife are required to
adopt jointly, each one of them must be qualified to adopt in
his or her own right (Republic v. Toledano, 233 SCRA 9 (1994).
However, the American husband must comply with the
requirements of the law including the residency requirement of
three (3) years. Otherwise, the adoption will not be allowed.
Successional Rights of Adopted Child (2004)
A Filipino couple, Mr. and Mrs. BM, Jr., decided to adopt YV,
an orphan from St. Claires orphanage in New York City. They
loved and treated her like a legitimate child for they have none
of their very own. However, BM, Jr., died in an
obtained, could the contemplated joint adoption in the
Philippine prosper? Explain.
SUGGESTED ANSWER:
Yes, Lina and her American husband can jointly adopt a minor
brother of Lina because she and her husband are both qualified to
adopt. Lina, as a former Filipino citizen, can adopt her minor brother
under Sec. 7(b)(i) of RA 8552 (Domestic Adoption Act of 1998), or
under Art. 184 (3)(1) of the Family Code. The alien husband can
now adopt
BM, Sr.? Is there a difference? Why? Explain. (5%)
SUGGESTED ANSWER:
YV can inherit from BM, Jr. The succession to the estate of
BM, Jr. is governed by Philippine law because he was a
Filipino when he died (Article 16, Civil Code). Under Article
1039 of the Civil Code, the capacity of the heir to succeed is
governed by the national law of the decedent and not by the
national law of the heir. Hence, whether or not YV can
inherit from BM, Jr. is determined by Philippine law. Under
Philippine law, the adopted inherits from the adopter as a
legitimate child of the adopter.
YV, however, cannot inherit, in his own right, from the
father of the adopter, BM, Sr., because he is not a legal heir
of BM, Sr. The legal fiction of adoption exists only between
the adopted and the adopter. (Teotico v. Del Val 13 SCRA 406
[1965]). Neither may he inherit from BM, Sr. by representing
BM, Jr. because in representation, the representative must be
a legal heir not only of the person he is representing but also
of the decedent from whom the represented was supposed to
inherit (Article 973, Civil Code).
FAMILY CODE
Emancipation (1993)
 CIVIL LAW
Julio and Lea, both 18 years old, were sweethearts. At a party
at the house of a mutual friend. Lea met Jake, also 18 years
old, who showed interest in her. Lea seemed to entertain Jake
because she danced with him many times. In a fit of jealousy,
Julio shot Jake with his father's 38 caliber revolver which,
before going to the party he was able to get from the unlocked
drawer inside his father's bedroom. Jake died as a result of the
lone gunshot wound he sustained. His parents sued Julio's
parents for damages arising from quasi-delict. At the time of
the incident, Julio was 18 years old living with his parents.
Julio's parents moved to dismiss the complaint against them
claiming that since Julio was already of majority age, they were
no longer liable for his acts. 1) Should the motion to dismiss
be granted? Why? 2) What is the liability of Julio's parents to
Jake's parents? Explain your answer.
Page 23 of 119
Answers to the BAR as Arranged by Topics
SUGGESTED ANSWER:
1) No, the Motion to Dismiss should not be granted. Article
236 of the Family Code as amended by Republic Act 6809,
provides in the third paragraph that "nothing in this Code
shall be construed to derogate from the duty or responsibility
of parents and guardians for children and wards below
twenty-one years of age mentioned in the second and third
paragraphs of Article 2180 of the Civil Code". 2) The liability
of Julio's parents to Jake's parents arises from quasi-delict
(Arts. 2176 and 2180 Civil Code) and shall cover specifically
the following:
a) P50,000.00 for the death of the son;
b) such amount as would correspond to lost earning
capacity; and
c) moral damages.
Family Code; Retroactive Application; Vested
Rights (2000)
On April 15, 1980, Rene and Angelina were married to each
other without a marriage settlement. In 1985, they acquired a
parcel of land in Quezon City. On June 1, 1990, when
Angelina was away in Baguio, Rene sold the said lot to
Marcelo. Is the sale void or voidable? (2%)
SUGGESTED ANSWER:
The sale is void. Since the sale was executed in 1990, the
Family Code is the law applicable. Under Article 124 of the
FC, the sale of a conjugal property by a spouse without the
consent of the other is void.
ALTERNATIVE ANSWER:
The sale is voidable. The provisions of the Family Code may
apply retroactively but only if such application will not impair
vested rights. When Rene and Angelina got married in 1980,
the law that governed their property relations was the New
Civil Code. Under the NCC, as interpreted by the Supreme
Court in Heirs of Felipe v. Aldon, 100 SCRA 628 and reiterated
in Heirs of Ayuste v. Malabonga, G.R No, 118784, 2 September
1999, the sale executed by the husband without the consent of
the wife is voidable. The husband has already acquired a
vested right on the voidable nature of dispositions made
without the consent of the wife. Hence, Article 124 of the
Family Code which makes the sale void does not apply.
(Year 1990-2006)
Family Home; Dwelling House (1994)
In 1991, Victor established judicially out of conjugal property,
a family home in Manila worth P200.000.00 and extrajudicially
a second family home in Tagaytay worth P50.000.00. Victor
leased the family home in Manila to a foreigner. Victor and his
family transferred to another house of his in Pasig. Can the
two family homes be the subject of execution on a judgment
against Victor's wife for non-payment of the purchase in 1992
of household appliances?
SUGGESTED ANSWER:
The two (2) so-called family homes can be the subject of
execution. Neither of the abodes are considered family homes
because for purposes of availing the benefits under the Family
Code, there can only be one (1) family home which is defined
as the "dwelling house" where the husband and the wife and
their family actually "reside" and the land on which it is
situated. (Arts. 152 and 161, Family Code)
Family; Constitutional Mandates; Divorce (1991)
A. How does the 1987 Constitution strengthen the
family as an Institution?
B. Do the Constitutional policy on the family and the
provision that marriage is the foundation of the family and
shall be protected by the State bar Congress from enacting a
law allowing divorce in the Philippines?
SUGGESTED ANSWER:
A. Sec, 2, Article II of the Constitution provides that: The
State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and
the life of the unborn from conception. The natural and
primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character
shall receive the support of the Government.
Section I, Article XV, further provides that: The State
recognizes the Filipino family as the foundation of the nation.
Accordingly, it shall strengthen its solidarity and actively
promote its total development.
(Note: The Committee recommends that a citation of either one of the
provisions be credited as a complete answer).
SUGGESTED ANSWER:
B, No, the Constitutional policy, as well as the supporting
provision, does not amount to a prohibition to Congress to
enact a law on divorce. The Constitution only meant to help
the marriage endure, to "strengthen its solidarity and actively
promote its total development." ALTERNATIVE
ANSWER:
B. Yes. Congress is barred from enacting a law allowing
divorce, since Section 2 of Article XV provides: "Sec. 2.
Marriage, as an inviolable social institution, is the foundation of
the family and shall be protected by the State." Since marriage
is "Inviolable", it cannot be dissolved by an absolute divorce.
Marriage; Annulment; Effects; Requisites Before
Remarriage
(1990)
The marriage of H and W was annulled by the competent
court. Upon finality of the judgment of nullity. H began
looking for his prospective second mate. He fell in love with
 CIVIL LAW (Year 1990-2006)
a sexy woman S who wanted to be married as soon as
possible, i.e., after a few months of courtship. As a young
lawyer, you were consulted by H,
(a) How soon can H be joined in lawful wedlock to his
girlfriend S? Under existing laws, are there certain requisites
that must be complied with before he can remarry? What
advice would you give H?
(b) Suppose that children were born from the union of
H and W, what would be the status of said children? Explain
your answer.
(c) If the subsequent marriage of H to S was
contracted before compliance with the statutory condition
for its validity, what are the rights of the children of the first
marriage (i.e., of H and W) and of the children of the
subsequent marriage (of H and S)?
SUGGESTED ANSWER:
(a) H, or either spouse for that matter, can marry again after
complying with the provisions of Article 52 of the Family
Code, namely, there must be a partition and distribution, of
the properties of the spouses, and the delivery of the
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) children's presumptive legitimes which
should be recorded sexually-transmissible disease, found to be serious and
in the appropriate civil registry and registries of property. H c) To be entitled to the legitime and other successional
should be so advised. rights granted to them by the Civil Code (Article 174,
ALTERNATIVE ANSWER: for (a) Family Code).
The following are the requisites prescribed by law and I advice
to H is to comply with them, namely: Marriage; Annulment; Grounds (1991)
1) If either spouse contracted the marriage in bad faith, One of the grounds for annulment of marriage is that
his or her share of the net profits of the community property : either party, at the time of their marriage was afflicted
or conjugal partnership property shall be forfeited in favor of with a
the common children or, if there are none, the children of the appears incurable. Two (2) years after their marriage,
guilty spouse by a previous marriage or, in default of children, which took place on 10 October 1988, Bethel
the innocent spouse; discovered that her husband James has a sexually-
transmissible disease which he contracted even prior
2) Donations by reason of marriage shall remain valid to their marriage although James did not know it
except that if the donee contracted the marriage in bad faith, himself until he was examined two [2) years later
such donations made to said donee are revoked by operation when a child was already born to them. Bethel sues
of law; James for annulment of their marriage. James
3) The spouse who contracted the subsequent marriage opposes the annulment on the ground that he did not
in bad faith shall be disqualified to inherit from the innocent even know that he had such a disease so that there
spouse by testate and intestate succession;
was no fraud or bad faith on his part. Decide.
4) If both spouses of the subsequent marriage acted in
bad faith all donations by reason of marriage and testamentary B. Suppose that both parties at the time of their marriage were
dispositions made by one in favor of the other are revoked by similarly afflicted with sexually-transmissible diseases, serious
operation of law. and incurable, and both knew of their respective infirmities,
5) The judgment of annulment of the marriage, the can Bethel or James sue for annulment of their marriage?
partition and distribution of the properties of the spouses, and SUGGESTED ANSWER:
the delivery of the children's presumptive legitimes shall be A. The marriage can be annulled, because good faith is
recorded in the appropriate civil registry and registers of not a defense when the ground is based upon sexually-
property, (Articles 53. 52, 43. transmissible disease on the part of either party.
44. Family Code). SUGGESTED ANSWER:
B. Yes, the marriage can still be annulled because the
SUGGESTED ANSWER: fact that both of them are afflicted with sexually-transmissible
(b) The children born from the union of H and W diseases does not efface or nullity the ground.
would be legitimate children if conceived or born before the Alternative Answer:
decree of annulment of the marriage (under Art. 45 of the B. No, the marriage can no longer be annulled, because the
Family Code) has become final and executory (Art. 54, fact that both were afflicted and that both knew of their
Family Code}. respective infirmities constitutes a waiver of that ground.
SUGGESTED ANSWER: Marriage; Annulment; Judicial Declaration (1993)
(c) The children of the first marriage shall be Maria and Luis, both Filipinos, were married by a Catholic
considered legitimate children if conceived or born before priest in Lourdes Church, Quezon City in 1976, Luis was
the Judgment of annulment of the marriage of H and W has drunk on the day of his wedding. In fact, he slumped at the
become final and executory. Children conceived or born of altar soon after the ceremony. After marriage, Luis never had
the subsequent marriage shall likewise be legitimate even if a steady job because he was drunk most of the time. Finally,
the marriage of H and S be null and void for failure to he could not get employed at all because of drunkenness.
comply with the requisites of Article 52 of the Family Code Hence, it was Maria who had to earn a living to support
(Article 53, Family Code). As legitimate children, they have herself and her child begotten with Luis. In 1986, Maria filed
the following rights; a petition in the church matrimonial court in Quezon City to
annul her marriage with Luis on the ground of psychological
a) To bear the surnames of the father and the mother in
incapacity to comply with his marital obligation. Her petition
conformity with the provisions of the Civil
was granted by the church matrimonial court. 1) Can Maria
Code on Surnames;
now get married legally to another man under Philippine laws
b) To receive support from their parents, their
after her marriage to Luis was annulled by the church
ascendants, and in proper cases, their brothers and sisters,
matrimonial court? Explain. 2) What must Maria do to
in conformity with the provisions of this Code on
enable her to get married lawfully to another man under
Support; and Philippine laws?
SUGGESTED ANSWER:
1) No, Maria cannot validly contract a subsequent
marriage without a court declaration of nullity of the first
marriage. The law does not recognize the church declaration
of nullity of a marriage.
2) To enable Maria to get married lawfully to another
man. she must obtain a judicial declaration of nullity of the
prior marriage under Article 36 Family Code.
Marriage; Annulment; Legal Separation;
Prescription of
Actions (1996)
2) Bert and Baby were married to each other on December
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) drug addict. Efforts to have him rehabilitated
were In 1989, Maris, a Filipino citizen, married her boss Johnson,
23, 1988. Six months later, she discovered that he was a
unsuccessful. Can Baby ask for annulment of marriage, or
legal separation? Explain.
SUGGESTED ANSWER:
No, Baby cannot ask for annulment of her marriage or for
legal separation because both these actions had already
prescribed.
While concealment of drug addiction existing at the
time of marriage constitutes fraud under Art. 46 of the
FC which makes the marriage voidable under Art. 45
of the FC, the action must, however, be brought within
5 years from the discovery thereof under Article 47(3),
FC, Since the drug addiction of Bert was discovered
by Baby in June 1989, the action had already
prescribed in June of 1994. Although drug addiction is
a ground for legal separation under Art. 55(5) and Art.
57 of the FC requires that the action must be brought
within 5 years from the occurrence of the cause. Since
Bert had been a drug addict from the time of the
celebration of the marriage, the action for legal
separation must have been brought not later than 23
December 1993. Hence, Baby cannot, now, bring the
action for legal separation. Marriage; Annulment;
Proper Party (1990)
D and G, age 20 and 19, respectively, and both single, eloped
and got married to each other without parental consent in the
case of G, a teenaged student of an exclusive college for girls.
Three years later, her parents wanted to seek judicial
annulment on that ground. You were consulted and asked to
prepare the proper complaint. What advice would you give
G's parents? Explain your answer.
SUGGESTED ANSWER:
G himself should file the complaint under Article 45 of the
Family Code, and no longer the parents because G is already
22 years of age.
Marriage; Annulment; Proper Party (1995)
Yvette was found to be positive for HIV virus, considered
sexually transmissible, serious and incurable. Her boyfriend
Joseph was aware of her condition and yet married her. After
two (2) years of cohabiting with Yvette, and in his belief that
she would probably never be able to bear him a healthy child,
Joseph now wants to have his marriage with Yvette annulled.
Yvette opposes the suit contending that Joseph is estopped
from seeking annulment of their marriage since he knew even
before their marriage that she was afflicted with HIV virus.
Can the action of Joseph for annulment of his marriage with
Yvette prosper? Discuss fully.
SUGGESTED ANSWER:
No, Joseph knew that Yvette was HIV positive at the time of
the marriage. He is, therefore, not an injured party. The FC
gives the right to annul the marriage only to an injured party.
[Art. 47 (5), FC]
ALTERNATIVE ANSWER:
The action for annulment can prosper because the
prescriptive period of five (5) years has not yet lapsed. [Art. 45
(6), FC].
Marriage; Divorce Decree; Void Marriages (1992)
an American citizen, in Tokyo in a wedding ceremony
celebrated according to Japanese laws. One year later,
Johnson returned to his native Nevada, and he validly
obtained in that state an absolute divorce from his wife Maris.
After Maris received the final judgment of divorce, she
married her childhood sweetheart Pedro, also a Filipino
citizen, in a religious ceremony in Cebu City, celebrated
according to the formalities of Philippine law. Pedro later left
for the United States and became naturalized as an American
citizen. Maris followed Pedro to the United States, and after a
serious quarrel, Marts filed a suit and obtained a divorce
decree issued by the court in the state of Maryland. Maris then
returned to the Philippines and in a civil ceremony celebrated
in Cebu City according to the formalities of Philippine law,
she married her former classmate Vincent likewise a Filipino
citizen. b) Was the marriage of Maris and Pedro valid when
celebrated? Is their marriage still valid existing now? Reasons.
c) Was the marriage of Marts and Vincent valid when
celebrated? Is their marriage still validly existing now?
Reasons. d) At this point in time, who is the lawful husband
of Marts? Reasons.
SUGGESTED ANSWER:
(b) The marriage of Maris and Pedro was valid when
celebrated because the divorce validly obtained by Johnson in
Manila capacitated Maris to marry Pedro. The marriage of
Maris and Pedro is still validly existing, because the marriage
has not been validly dissolved by the Maryland divorce [Art.
26, Family Code).
(c) The marriage of Maris and Vincent is void ab initio
because it is a bigamous marriage contracted by Maris during
the subsistence of her marriage with Pedro (Art 25 and 41,
Family Code). The marriage of Maris and Vincent does not
validly exist because Article 26 does not apply. Pedro was not
a foreigner at the time of his marriage with marts and the
divorce abroad (in Maryland) was initiated and obtained not
by the alien spouse, but by the Filipino spouse. Hence, the
Maryland divorce did not capacitate Marts to marry Vincent.
(d) At this point in time, Pedro is still the lawful
husband of Maris because their valid marriage has not been
dissolved by any valid cause (Art. 26. Family Code)
Marriage; Divorce Decrees; Filiation of Children
(2005)
In 1985, Sonny and Lulu, both Filipino citizens, were married
in the Philippines. In 1987, they separated, and Sonny went to
Canada, where he obtained a divorce in the same year. He
then married another Filipina, Auring, in Canada on January
1,1988. They had two sons, James and John. In 1990, after
failing to hear from Sonny, Lulu married Tirso, by whom she
had a daughter, Verna. In 1991, Sonny visited the Philippines
where he succumbed to heart attack..
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
a) Discuss the effect of the divorce obtained by Sonny
and Lulu in Canada. (2%) SUGGESTED
ANSWER:
The divorce is not valid. Philippine law does not provide for
absolute divorce. Philippine courts cannot grant it. A marriage
between two (2) Filipinos cannot be dissolved by a divorce
obtained abroad. (Garcia v. Redo, G.R. No. 138322, October 2,
2001). Philippine laws apply to Sonny and Lulu. Under Article
15 of the New Civil Code, laws relating to family rights and
duties, status, and capacity of persons are binding upon citizens
of the Philippines wherever they may be. Thus, the marriage of
Sonny and Lulu is still valid and subsisting.
b) Explain the status of the marriage between Sonny
and Auring. (2%)
SUGGESTED ANSWER:
Since the decree of divorce obtained by Lulu and Sony in
Canada is not recognized here in the Philippines, the marriage
between Sonny and Auring is void. (Art. 35, Family Code) Any
marriage subsequently contracted during the lifetime of the
first spouse shall be illegal and void, subject only to the
exception in the cases of absence or where the prior marriage
was dissolved or annulled. (Ninal
v. Bayadog, G.R. No. 133778, March 14, 2000) The marriage of
Sonny and Auring does not fall within the exception.
c) Explain the status of the marriage between Lulu and
Tirso. (2%) SUGGESTED
ANSWER:
The marriage of Lulu and Tirso is also void. Mere absence of
the spouse does not give rise to a right of the present spouse
to remarry. Article 41 of the Family Code provides for a valid
bigamous marriage only where a spouse has been absent for
four consecutive years before the second marriage and the
present spouse had a well-founded belief that the absent
spouse is already dead. (Republic v. Nolasco,
G.R. No. 94053, March 17, 1993)
d) Explain the respective filiation of James, John and
Verna. (2%) SUGGESTED
ANSWER:
James, John and Verna are illegitimate children since their
parents are not validly married. Under Article 165 of the
Family Code, children conceived and born outside a valid
marriage are illegitimate, unless otherwise provided in this
Code.
e) Who are the heirs of Sonny? Explain. (2%) Suggested
answer:
Sonny's heirs include James, John, and Lulu. Article 887 of the
Civil Code provides that the compulsory heirs of the deceased
are among others, his widow and his illegitimate children. The
widow referred to in Article 887 is the legal wife of the
deceased. Lulu is still a compulsory heir of Sonny because the
divorce obtained by Sonny in Canada cannot be recognized in
the Philippines. The legitime of each illegitimate child shall
consist of one-half of the legitime of a legitimate child. (Art.
176, Family Code)
Marriage; Divorce Decrees; Filipino Spouses
becoming Alien
(1996)
Flor and Virgillo were married to each other in Roxas City in
198O. In 1984, Flor was offered a teaching Job in Canada,
which she accepted. In 1989, she applied for and was granted
Canadian citizenship. The following year, she sued for divorce
from Virgilio in a Canadian court. After Virgilio was served
with summons, the Canadian court tried the case and decreed
the divorce. Shortly thereafter, Flor married a Canadian. Can
Virgilio marry again in the Philippines? Explain.
SUGGESTED ANSWER:
No, Virgilio cannot validly remarry. His case is not covered by
Article 26 of the Family Code, For said Article to be
applicable, the spouse who filed for divorce must be a
foreigner at the time of the marriage. Since both of them were
Filipinos at the time of the marriage, the divorce obtained by
Flor did not capacitate Virgilio to remarry. The fact that Flor
was already an alien at the time she obtained the divorce does
not give Virgilio the capacity to remarry under
Philippine Law.
ALTERNATIVE ANSWERS:
a) Yes, Virgilio can validly remarry. Art. 26 of the FC,
merely States the alien spouse without taking into
consideration his or her nationality at the time of the
marriage. While his case is not covered by the letter of Article
26 FC, it is, however, covered by the spirit of said Article, the
injustice to the Filipino spouse sought to be cured by said
Article is present in this case. (Department of Justice Opinion
No. 134 Series of 1993).
b) Although the marriage originally involved Filipino
citizens, it eventually became a marriage between an alien and
a Filipino after Flor became a Canadian citizen. Thus, the
divorce decree was one obtained by an alien spouse married
to a Filipino. Although nothing is said about whether such
divorce did capacitate Flor to remarry, that fact may as well be
assumed since the problem states that she married a Canadian
shortly after obtaining the divorce. Hence, Virgillo can marry
again under Philippine law, pursuant to Art. 26. FC which
applies because Flor was already an alien at the time of the
divorce.

Marriage; Divorce Decrees; Filipino Spouses

becoming Alien
(1999)
Ben and Eva were both Filipino citizens at the time of their
marriage in 1967, When their marriage turned sour, Ben went
to a small country in Europe, got himself naturalized there,
and then divorced Eva in accordance with the law of that
country, Later, he returned to the Philippines with his new
wife. Eva now wants to know what action or actions she can
file against Ben. She also wants to know if she can likewise
marry again. What advice can you give her? {5%)

SUGGESTED ANSWER:
Considering that Art. 26(2nd par.) contemplates a divorce
between a foreigner and a Filipino, who had such respective
nationalities at the time of their marriage, the divorce in
Europe will not capacitate the Filipino wife to remarry. The
advice we can give her is either to file a petition for legal
separation, on the ground of sexual infidelity and of
contracting a bigamous marriage abroad, or to file a petition
to dissolve the conjugal partnership or absolute community of
property as the case maybe.
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

ALTERNATIVE ANSWER:
Eva may file an action for legal separation on the grounds of
sexual infidelity of her husband and the contracting by her
husband of a bigamous marriage abroad.
Consequently, par. (1) of Art. 86, FC, is the applicable law. Since
Art. 86 of the FC makes no qualification as to who furnished the
ground or who was in bad faith in connection with the nullification of
the marriage, the conclusion is that Digna's father may revoke the
donation and get back the car.

She may remarry. While a strict interpretation of Article 26 of

the Family Code would capacitate a Filipino spouse to remarry Marriage; Grounds; Declaration of Nullity:
only when the other spouse was a foreigner at the time of the Annulment: Legal Separation: Separation of
marriage, the DOJ has issued an opinion (Opinion 134 s. of Property (2003)
1993) that the same injustice sought to be cured by Article 26 Which of the following remedies, i.e., (a) declaration of nullity
is present in the case of spouses who were both Filipino at the of marriage, (b) annulment of marriage, (c) legal separation,
time of the marriage but one became an alien subsequently. and/or (d) separation of property, can an aggrieved spouse
Said injustice is the anomaly of Eva remaining married to her avail himself/herself of-
husband who is no longer married to her. Hence, said Opinion
makes Article 26 applicable to her case and the divorce (i) If the wife discovers after the marriage that her
obtained abroad by her former Filipino husband would (husband has AIDSii) If the wife goes (to) abroad to
capacitate her to remarry. To contract a subsequent marriage, work as a nurse and . refuses to come home after the
all she needs to do is present to the civil registrar the decree of expiration of her three-year contract there.
divorce when she applies for a marriage license under Article (iii) If the husband discovers after the marriage that his wife
13 of the Family Code. has been a prostitute before they got married. ( iv) If the
husband has a serious affair with his secretary and refuses to
stop notwithstanding advice from relatives and friends.
Marriage; Donations by Reason of Marriage; Effect
( v) If the husband beats up his wife every time he
of
comes home drunk. 5% SUGGESTED
Declaration of Nullity (1996) ANSWER:
1) On the occasion of Digna's marriage to George, her father
(i) S
gave her a donation propter nuptias of a car. Subsequently,
i
the marriage was annulled because of the psychological
n
immaturity of George. May Digna's father revoke the
c
donation and get back the car? Explain.
e
SUGGESTED ANSWER: A
No, Digna's father may not revoke the donation because I
Digna was not in bad faith, applying Art. 86(3) of the Family D
Code. ALTERNATIVE S
ANSWER: i
a) Yes, the donation is revocable. Since the ground for s
the annulment of the marriage is the psychological immaturity a
of George, the judgment was in the nature of a declaration of s
nullity under Art. 36 of the FC and, therefore, the donation e
may be revoked under Art. 86( 1) of the FC for the reason that r
the marriage has been judicially declared void ab initio. i
o
ALTERNATIVE ANSWER: u
b) No, the donation cannot be revoked. The law s
provides that a donation by reason of marriage may be revoked a
by the donor if among other cases, the marriage is judicially n
declared void ab initio [par. (1) Art. 86. Family Code], or when d
the marriage is annulled and the donee acted in bad faith [par. i
(3), Id.]. Since the problem states that the marriage was n
annulled and there is no intimation of bad faith on the part of c
the donee Digna, the conclusion is that the donor cannot u
revoke r
the donation. a
ALTERNATIVE ANSWER: b
c) Yes, the donation can be revoked. The ground used in dissolving
the marriage was the psychological immaturity of George, which is
l
not a ground for annulment of marriage. If this term is equated with e
psychological incapacity as used in Art. 36 of the Family Code, then s
it is a ground for declaration of nullity of the marriage.
e u
x l
u m
a e
l n
l t
y o
- f
t t
r h
a e
n m
s a
m r
i r
s i
s a
i g
b e
l o
e n
d t
i h
s i
e s
a g
s r
e o
, u
t n
h d
e w
w h
i e
f t
e h
m e
a r
y s
f u
i c
l h
e f
a a
n c
a t
c w
t a
i s
o c
n o
f n
o c
r e
a a
n l
n e
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

d m
o e
r o
n f
o t
t h
f e
r m
o a
m r
t r
h i
e a
w g
i e
f .
e T
, h
p e
r m
o a
v r
i r
d i
e a
d g
t e
h i
a s
t v
t o
h i
e d
d a
i b
s l
e e
a e
s v
e e
w n
a t
s h
p o
r u
e g
s h
e t
n h
t e
a h
t u
t s
h b
e a
t n
i d
w i
a f
s e
n r
o e
t f
a u
w s
a e
r s
e t
t o
h c
a o
t m
h e
e h
h o
a m
d e
t f
h o
e r
d t
i h
s r
e e
a e
s (
e 3
a )
t m
t o
h n
e t
t h
i s
m f
e r
o o
f m
m t
a h
r e
r e
i x
a p
g i
e r
. a
t
(ii) I i
f o
t n
h o
e f
w h
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

e f
r i
c l
o e
n a
t n
r a
a c
c t
t i
, o
s n
h f
e o
i r
s j
p u
r d
e i
s c
u i
m a
e
l
d
s
t
e
o
p
h
a
a
r
v
a
e
a t
b i
a o
n n
d o
o f
n p
e r
d o
t p
h e
e r
h t
u y
s .
b I
a f
n t
d h
a e
n r
d e
h f
e u
m s
a a
y l
c
o t
n h
t e
i h
n u
u s
e b
s a
f n
o d
r m
m a
o y
r f
e i
t l
h e
a t
n h
o e
n a
e c
y t
e i
a o
r n
f f
r o
o r
m l
t e
h g
e a
e l
x s
p e
i p
r
a
a
r
t
a
i
t
o
i
n
o
o
f n
u
h
n
e
d
r
e
c
r
o
A
n
r
t
t
r
.
a
5
c
5
t
(
,
1
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

0 s
) p
o o
f n
t d
h e
e n
F t
a w
m i
i t
l h
y o
C u
o t
d j
e u
o s
n t
t i
h f
e i
g a
r b
o l
u e
n c
d a
o u
f s
a e
b f
a o
n r
d m
o o
n r
m e
e t
n h
t a
o n
f o
p n
e e
t y
i e
t a
i r
o .
n T
e h
r e
b w
y i
r f
e e
i d
s w
d e
e l
e l
m i
e n
d g
t w
o i
h t
a h
v o
e u
a t
b a
a n
n y
d i
o n
n t
e e
d n
t t
h i
e o
h n
u o
s f
b r
a e
n t
d u
w r
h n
e i
n n
s g
h (
e A
l r
e t
a i
v c
e l
s e
t 1
h 0
e 1
c ,
o F
n C
j )
u .
g T
a h
l e
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

i d
n u
t r
e i
n n
t g
i t
o h
n e
n 3
o 0
t y
t e
o a
r r
e p
t e
u r
r i
n o
c d
a o
n f
n h
o e
t r
b c
e o
p n
r t
e r
s a
u c
m t
e .
d

separation of property for failure of the husband to
comply with his marital duty of mutual respect (Article 135
(4), Article 101, FC). She may also file an action for
declaration of nullity of the marriage if the husbands
behavior constitute psychological incapacity existing at the
time of the celebration of marriage.
Marriage; Grounds; Nullity; Annulment; Legal
Separation
(1997)
Under what conditions, respectively, may drug addiction be a
ground, if at all, (a) for a declaration of nullity of marriage, (b)
for an annulment of the marriage contract, and (c) for legal
separation between the spouses?
SUGGESTED ANSWER:
(a) Declaration of nullity of marriage:
1) The drug addiction must amount to
psychological incapacity to comply with the essential
obligations of marriage;
2) It must be antecedent (existing at the time of
marriage), grave and incurable:
3) The case must be filed before August 1, 1998.
Because if they got married before August 3,
1998, it must be filed before August 1, 1998.
(b) Annulment of the Marriage Contract: 1) The drug
addiction must be concealed; 2) It must exist at the time
of
marriage; 3) There should be no cohabitation with full
knowledge of the drug addiction; 4) The case is filed
within five (5) years from discovery.
(iii) If the husband discovers after the marriage that his
wife was a prostitute before they got married, he has no
remedy. No misrepresentation or deceit as to character,
health, rank, fortune or chastity shall constitute fraud as legal
ground for an action for the annulment of marriage (Article
46 FC).
(iv) The wife may file an action for legal separation.
The husbands sexual infidelity is a ground for legal
separation 9Article 55, FC). She may also file an action for
judicial separation of property for failure of her
husband to comply with his martial duty of fidelity (Article
135 (4), 101, FC).
(v) The wife may file an action for legal separation
on the ground of repeated physical violence on her person
(Article
55 (1), FC). She may also file an action for judicial
(c) Legal Separation; 1) There should be no condonation or
consent to the drug addiction; 2) The action must be filed
within five (5) years from the occurrence of the cause.
3) Drug addiction arises during the marriage and not at
the time of marriage.
Marriage; Legal Separation; Declaration of Nullity
(2002) If drug addiction, habitual alcoholism, lesbianism or
homosexuality should occur only during the marriage, would
this constitute grounds for a declaration of nullity or for legal
separation, or would they render the marriage voidable? (1%).
SUGGESTED ANSWER:
In accordance with law, if drug addiction, habitual alcoholism,
lesbianism or homosexuality should occur only during the
marriage, they: a) Will not constitute as ground for declaration
of nullity
(Art. 36, Family Code); b) Will constitute as grounds
for legal separation (Art. 56, FC) and c) will not
constitute as grounds to render the marriage voidable
(Art.45and 46, FC)
Marriage; Legal Separation; Grounds; Prescriptive
Period
(1994)
Rosa and Ariel were married in the Catholic Church of
Tarlac,
Tarlac on January 5. 1988. In 1990, Ariel went to
Saudi Arabia to work. There, after being converted
into Islam,
Ariel married Mystica, Rosa learned of the second
marriage of Ariel on January 1, 1992 when Ariel
returned to the Philippines with Mystica. Rosa filed an
action for legal separation on February 5, 1994, 1)
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Does Rosa have legal grounds to ask for legal
separation? 2) Has the action prescribed?
SUGGESTED ANSWER:
1) a) Yes, the abandonment of Rosa by Ariel for more
than one (1) year is a ground for legal separation unless upon
returning to the Philippines, Rosa agrees to cohabit with Ariel
which is allowed under the Muslim Code. In this case, there is
condonation. b) Yes. The contracting of a subsequent
bigamous marriage whether in the Philippines or abroad is a
ground for legal separation under Article 55(7) of the Family
Code. Whether the second marriage is valid or not, Ariel
having converted into Islam, is immaterial.
SUGGESTED ANSWER:
2) No. Under Article 57 of the Family Code, the
aggrieved spouse must file the action within five (5) years
from the occurrence of the cause. The subsequent marriage of
Ariel could not have occurred earlier than 1990, the time he
went to Saudi Arabia. Hence, Rosa has until 1995 to bring the
action under the Family Code.
Marriage; Legal Separation; Mutual guilt (2006)
Saul, a married man, had an adulterous relation with Tessie. In
one of the trysts, Saul's wife, Cecile, caught them in flagrante.
Armed with a gun, Cecile shot Saul in a fit of extreme
jealousy, nearly killing him. Four (4) years after the incident,
Saul filed an action for legal separation against Cecile on the
ground that she attempted to kill him.
(1) If you were Saul's counsel, how will you argue his
case? (2.5%)
SUGGESTED ANSWER:
As the counsel of Saul, I will argue that an attempt by the wife
against the life of the husband is one of the grounds
enumerated by the Family Code for legal separation and there
is no need for criminal conviction for the ground to be
invoked (Art. 55, par. 9, Family Code).
(2) If you were the lawyer of Cecile, what will be your
defense? (2.5%)
SUGGESTED ANSWER:
As the counsel of Cecile, I will invoke the adultery of Saul.
Mutual guilt is a ground for the dismissal of an action for legal
separation (Art. 56, par. 4, Family Code). The rule is anchored
on a well-established principle that one must come to court
with clean hands.
(3) If you were the judge, how will you decide the case?
(5%) SUGGESTED
ANSWER:
If I were the judge, I will dismiss the action on the ground of
mutual guilt of the parties. The Philippine Constitution
protects marriage as an inviolable social institution (Art. XV,
Sec. 2, 1987 Constitution). An action for legal separation
involves public interest and no such decree should be issued if
any legal obstacle thereto appears on record. This is in line
with the policy that in case of doubt,
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) the court shall uphold the validity and sanctity
of marriage the preceding Article, only the properties acquired by both
(Brown v. Yambao, G.R. No. L-10699, October 18, 1957).
Marriage; Non-Bigamous Marriages (2006)
Marvin, a Filipino, and Shelley, an American, both residents
of California, decided to get married in their local parish. Two
years after their marriage, Shelley obtained a divorce in
California. While in Boracay, Marvin met Manel, a Filipina,
who was vacationing there. Marvin fell in love with her. After
a brief courtship and complying with all the requirements,
they got married in Hongkong to avoid publicity, it being
Marvin's second marriage. Is his marriage to Manel valid?
Explain. (5%)
SUGGESTED ANSWER:
Yes. The marriage will not fall under Art. 35(4) of the Family
Code on bigamous marriages, provided that Shelley obtained
an absolute divorce, capacitating her to remarry under her
national law. Consequently, the marriage between Marvin and
Manel may be valid as long as it was solemnized and valid in
accordance with the laws of Hongkong [Art. 26, paragraphs 1
and 2, Family Code].
Marriage; Property Relations; Void Marriages
(1991)
In June 1985, James married Mary. In September 1988, he
also married Ophelia with whom he begot two (2) children, A
and B. In July 1989, Mary died. In July 1990, he married
Shirley and abandoned Ophelia, During their union. James
and Ophelia acquired a residential lot worth P300,000.00.
Ophelia sues James for bigamy and prays that his marriage
with Shirley be declared null and void. James, on the other
hand, claims that since his marriage to Ophelia was contracted
during the existence of his marriage with Mary, the former is
not binding upon him, the same being void ab initio he
further claims that his marriage to Shirley is valid and binding
as he was already legally capacitated at the time he married
her. a) Is the contention of James correct? b) What property
Relations governed the union of James and Ophelia? c) Is the
estate of Mary entitled to a share in the
residential lot acquired by James and Ophelia?
SUGGESTED ANSWER:
A. Yes. His marriage to Ophelia is void ab initio because of
his subsisting prior marriage to Mary. His marriage to Shirley,
after Mary's death, is valid and binding.
ALTERNATIVE ANSWER:
A. No. The contention of James is not correct. Art. 40, Family
Code, provides that the "absolute nullity of a previous
marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such previous
marriage void." It can be said, therefore, that the marriage of
James to Shirley is void since his previous marriage to
Ophelia, although itself void, had not yet been judicially
declared void,
ALTERNATIVE ANSWER:
A. No. The contention of James is not correct. He
cannot set up as a defense his own criminal act or
wrongdoing-
SUGGESTED ANSWER:
B. The provisions of Art 148 of the Family Code, shall
govern: Art.
148. In cases of cohabitation not falling under
of the parties through their actual joint contribution of money,
property, or industry shall be owned by them in common in
proportion to their respective contributions. In the absence, of proof
to the contrary, their contributions and corresponding shares are
presumed to be equal. The same rule and presumption shall apply
to joint deposits of money and evidences of credit.
SUGGESTED ANSWER:
C. It should be distinguished when the property was acquired.
If it was acquired before Mary's death, the estate of
Mary is entitled to 1/2 of the share of James. If it
was acquired after Mary's death, there will be no share
at all for the estate of Mary.
Marriage; Psychological Incapacity (1996)
On April 15, 1983, Jose, an engineer, and Marina, a nurse,
were married to each other in a civil ceremony in Boac.
Marinduque. Six months after their marriage, Jose was
employed in an oil refinery in Saudi Arabia for a period of
three years. When he returned to the Philippines, Marina was
no longer living in their house, but in Zamboanga City,
working in a hospital. He asked her to come home, but she
refused to do so, unless he agreed not to work overseas
anymore because she cannot stand living alone. He could not
agree as in fact, he had signed another three year contract.
When he returned in 1989, he could not locate Marina
anymore. In 1992, Jose filed an action served by publication
in a newspaper of general circulation. Marina did not file any
answer, a possible collusion between the parties was ruled out
by the Public Prosecutor. Trial was conducted and Marina
neither appeared nor presented evidence in her favor. If you
were the judge, will you grant the annulment. Explain.
SUGGESTED ANSWER:
As judge, I will not grant the annulment. The facts do not
show any taint of personality disorder on the part of the wife
Marina so as to lend substance to her husband's averment of
psychological incapacity within the meaning of Art 36 of the
Family Code. In Santos vs. CA (240 SCRA 20), this particular
ground for nullity of marriage was held to be limited only to
the most serious cases of personality disorders (clearly
demonstrative of utter sensitivity or inability to give meaning
and significance to the marriage. Marina's refusal to come
home to her husband unless he agreed not to work overseas,
far from being indicative of an insensitivity to the meaning of
marriage, or of a personality disorder, actually shows a
sensitive awareness on her part of the marital duty to live
together as husband and wife. Mere refusal to rejoin her
husband when he did not accept the condition imposed by
her does not furnish any basis for concluding that she was
suffering from psychological incapacity to discharge the
essential marital obligations.
Mere intention to live apart does not fall under Art. 36, FC.
Furthermore, there is no proof that the alleged psychological
incapacity existed at the time of the marriage.
Page 30 of 119
Marriage; Psychological Incapacity (2006)
Gemma filed a petition for the declaration of nullity of her
marriage with Arnell on the ground of psychological
incapacity. She alleged that after 2 months of their marriage,
Arnell showed signs of disinterest in her, neglected her and
went abroad. He returned to the Philippines after 3 years but
did not even get in touch with her. Worse, they met several
times in social functions but he snubbed her. When she got
sick, he did not visit her even if he knew of her confinement
in the hospital. Meanwhile, Arnell met an accident which
disabled him from reporting for work and earning a living to
support himself. Will Gemma's suit prosper? Explain. (5%)
SUGGESTED ANSWER:
No, Gemma's suit will not prosper. Even if taken as true, the
grounds, singly or collectively, do not constitute "psychological
incapacity." In Santos v. CA, G.R. No. 112019, January 4, 1995, the
Supreme Court clearly explained that "psychological incapacity
must be characterized by (a) gravity, (b) juridical antecedence, and
(c) incurability"
(Ferraris v. Ferraris, G.R. No. 162368, July 17, 2006; Choa v. Choa,
G.R. No. 143376, November 26, 2002). The illness must be shown
as downright incapacity or inability to perform one's marital
obligations, not a mere refusal, neglect, difficulty or much less, ill
will. Moreover, as ruled in Republic v. Molina, GR No. 108763,
February 13, 1997, it is essential that the husband is capable of
meeting his marital responsibilities due to psychological and not
physical illness
(Antonio v. Reyes, G.R. No. 155800, March 10, 2006; Republic
v. Quintero-Hamano, G.R. No. 149498, May 20, 2004).
Furthermore, the condition complained of did not exist at
the time of the celebration of marriage.
Marriage; Psychological Incapacity (2006)
Article 36 of the Family Code provides that a marriage contracted by any
party who, at the time of the celebration, was psychologically
incapacitated to comply with the essential marital obligations of marriage,
shall be void. Choose the spouse listed below who is psychologically
incapacitated. Explain. (2.5%) a) Nagger b) Gay or Lesbian c) Congenital
sexual pervert d) Gambler e) Alcoholic SUGGESTED ANSWER: The best
answers are B and C. To be sure, the existence and concealment of these
conditions at the inception of marriage renders the marriage contract
voidable (Art. 46, Family Code). They may serve as indicia of
psychological incapacity, depending on the degree and severity of the
disorder (Santos v. CA, G.R. No. 112019, Jan. 4, 1995). Hence, if the
condition of homosexuality, lesbianism or sexual perversion, existing at
the inception of the marriage, is of such a degree as to prevent any form
of sexual intimacy, any of them may qualify as a ground for psychological
incapacity. The law provides that the husband and wife are obliged to live
together, observe mutual love, respect and fidelity (Art. 68, Family Code).
The mandate is actually the spontaneous, mutual affection between the
spouses. In the natural order it is sexual intimacy which brings the
spouses wholeness and oneness (Chi Ming Tsoi
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
v. CA, G.R. No. 119190, January 16,1997). was solemnized by an authorized officer under Art. 7 (3) and
ALTERNATIVE ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
None of them are necessarily psychologically incapacitated. Being
a nagger, etc. are at best only physical manifestations indicative of
psychological incapacity. More than just showing the
manifestations of incapacity, the petitioner must show that the
respondent is incapacitated to comply with the essential marital
obligations of marriage and that it is also essential that he must be
shown to be incapable of doing so due to some psychological,
not physical illness
(Republic v. Quintero-Hamano, G.R. No. 149498, May 20,
2004).
ALTERNATIVE ANSWER:
A congenital sexual pervert may be psychologically
incapacitated if his perversion incapacitates him from
discharging his marital obligations. For instance, if his
perversion is of such a nature as to preclude any normal
sexual activity with his spouse.
Marriage; Requisites (1995)
Isidro and Irma, Filipinos, both 18 years of age, were
passengers of Flight No. 317 of Oriental Airlines. The plane
they boarded was of Philippine registry. While en route from
Manila to Greece some passengers hijacked the plane, held
the chief pilot hostage at the cockpit and ordered him to fly
instead to Libya. During the hijacking Isidro suffered a heart
attack and was on the verge of death. Since Irma was already
eight months pregnant by Isidro, she pleaded to the hijackers
to allow the assistant pilot to solemnize her marriage with
Isidro. Soon after the marriage, Isidro expired. As the plane
landed in Libya Irma gave birth. However, the baby died a
few minutes after complete delivery. Back in the Philippines
Irma immediately filed a claim for inheritance. The parents of
Isidro opposed her claim contending that the marriage
between her and Isidro was void ab initio on the following
grounds: (a) they had not given their consent to the marriage
of their son; (b) there was no marriage license; (c) the
solemnizing officer had no authority to perform the marriage;
and, (d) the solemnizing officer did not file an affidavit of
marriage with the proper civil registrar.
1. Resolve each of the contentions ([a] to [d]) raised by the
parents of Isidro. Discuss fully.
SUGGESTED ANSWER:
1. (a) The fact that the parents of Isidro and of Irma did not
give their consent to the marriage did not make the marriage
void ab initio. The marriage is merely voidable under Art 45
of the FC.
(b) Absence of marriage license did not make the
marriage void ab initio. Since the marriage was solemnized in
articulo mortis, it was exempt from the license requirement
under Art. 31 of the FC.
(c) On the assumption that the assistant pilot was acting
for and in behalf of the airplane chief who was under
disability, and by reason of the extraordinary and exceptional
circumstances of the case [ie. hostage situation), the marriage
Art. 31. of the FC.
(d) Failure of the solemnizing officer to file the affidavit
of marriage did not affect the validity of the marriage. It is
merely an irregularity which may subject the solemnizing
officer to sanctions.
ALTERNATIVE ANSWER:
Considering that the solemnizing officer has no authority to
perform the marriage because under Art. 7 the law authorizes
only the airplane chief, the marriage is void, hence, a, c, and d
are immaterial.
Marriage; Requisites (1999)
What is the status of the following marriages and why?
(a) A marriage between two 19-year olds without
parental consent, (2%)
(b) A marriage between two 21-year olds without
parental advice. (2%)
(c) A marriage between two Filipino first cousins in
Spain where such marriage is valid. (2%) (d)
A marriage between two Filipinos in Hongkong
before a notary public. (2%)
(e) A marriage solemnized by a town mayor three
towns away from his jurisdiction, (2%) SUGGESTED
ANSWER:
(a) The marriage is voidable. The consent of the parties
to the marriage was defective. Being below 21 years old, the
consent of the parties is not full without the consent of their
parents. The consent of the parents of the parties to the
marriage is indispensable for its validity.
SUGGESTED ANSWER:
(b) Between 21-year olds, the marriage is valid despite
the absence of parental advice, because such absence is merely
an irregularity affecting a formal requisite i.e., the marriage
license and does not affect the validity of the marriage itself.
This is without prejudice to the civil, criminal, or administrative
liability of the party responsible therefor.
SUGGESTED ANSWER:
(c) By reason of public policy, the marriage between
Filipino first cousins is void [Art. 38, par. (1), Family Code],
and the fact that it is considered a valid marriage in a foreign
country in this case, Spain does not validate it, being an
exception to the general rule in Art. 96 of said Code which
accords validity to all marriage solemnized outside the
Philippine x x x and valid there as such.
ALTERNATIVE ANSWER
The marriage it void. Under Article 96 of the Family Code, a
marriage valid where celebrated is valid in the Philippines
except those marriages enumerated in said Article which
marriages will remain void even though valid where
solemnized. The marriage between first cousins is one of those
marriages enumerated therein, hence, it is void even though
valid in Spain where it was celebrated.
By reason of Art. 15 in relation to Article 38 of the Civil Code,
which applies to Filipinos wherever they are, the marriage is
void.
SUGGESTED ANSWER:
(d) It depends. If the marriage before the notary public is
valid under Hongkong Law, the marriage is valid in the
Philippines. Otherwise, the marriage that is invalid in
Hongkong will be invalid in the Philippines.
ALTERNATIVE ANSWER:
If the two Filipinos believed in good faith that the Notary
Public is authorized to solemnize marriage, then the marriage
is valid.
were aware of the fact, the marriage is void. They cannot claim
good faith in believing that the solemnizing officer was
authorized because the scope of the authority of the
solemnizing officer is a matter of law. If, however, one of the
parties believed in good faith that the other was a member
of the sect, then the marriage is valid

SUGGESTED ANSWER:
(e) Under the Local Government Code, a town mayor
may validly solemnize a marriage but said law is silent as to the
territorial limits for the exercise by a town mayor of such
authority. However, by analogy, with the authority of members
of the Judiciary to solemnize a marriage, it would seem that the
mayor did not have the requisite authority to solemnize a
marriage outside of his territorial jurisdiction. Hence, the
marriage is void, unless it was contracted with either or both
parties believing in good faith that the mayor had the legal
authority to solemnize this particular marriage
(Art 35, par 2 Family Code). ALTERNATIVE
ANSWER:
The marriage is valid. Under the Local Government Code, the
authority of a mayor to solemnize marriages is not restricted
within his municipality implying that he has the authority even
outside the territory thereof. Hence, the marriage he solemnized
outside his municipality is valid. And even assuming that his
authority is restricted within his municipality, such marriage will
nevertheless, be valid because solemnizing the marriage outside
said municipality is a mere irregularity applying by analogy the
case of Navarro v Domagtoy, 259 Scra 129. In this case, the
Supreme Court held that the celebration by a judge of a marriage
outside the jurisdiction of his court is a mere irregularity that did
not affect the validity of the marriage notwithstanding Article 7
of the Family Code which provides that an incumbent member
of the judiciary is authorized to solemnize marriages only within
the courts jurisdiction.

Marriage; Requisites; Marriage License (1996)

On Valentine's Day 1996, Ellas and Fely, both single and 25
years of age, went to the city hall where they sought out a
fixer to help them obtain a quickie marriage. For a fee, the
fixer produced an ante-dated marriage license for them,
Issued by the Civil Registrar of a small remote municipality.
He then brought them to a licensed minister in a restaurant
behind the city hall, and the latter solemnized their marriage
right there and then. 1) Is their marriage valid, void or
voidable? Explain.
SUGGESTED ANSWER:
The marriage is valid. The irregularity in the issuance of a valid
license does not adversely affect the validity of the marriage.
The marriage license is valid because it was in fact issued by a
Civil Registrar (Arts. 3 and 4. FC).
ALTERNATIVE ANSWER:
It depends. If both or one of the parties was a member of the
religious sect of the solemnizing officer, the marriage is valid.
If none of the parties is a member of the sect and both of them
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
under Article 35 (2), FC. In that case, the party in good faith
is acting under a mistake of fact, not a mistake of law,
2) Would your answer be the same if it should turn out that the
marriage license was spurious? Explain.
SUGGESTED ANSWER:
No, the answer would not be the same. The marriage would
be void because of the absence of a formal requisite. In such a
case, there was actually no valid marriage license.
Marriage; Requisites; Marriage License (2002)
On May 1, 1978 Facundo married Petra, by whom he had a
son Sotero. Petra died on July 1, 1996, while Facundo died on
January 1, 2002. Before his demise, Facundo had married, on
July 1, 2002, Quercia. Having lived together as husband and
wife since July 1, 1990, Facundo and Quercia did not secure a
marriage license but executed the requisite affidavit for the
purpose. To ensure that his inheritance rights are not
adversely affected by his father second marriage, Sotero now
brings a suit to seek a declaration of the nullity of the marriage
of Facundo and Quercia, grounded on the absence of a valid
marriage license. Quercia contends that there was no need for
a marriage license in view for her having lived continuously
with Facundo for five years before their marriage and that has
Sotero has no legal personality to seek a declaration of nullity
of the marriage since Facundo is now deceased.
A. Is the marriage of Facundo and Quercia valid, despite the
absence of a marriage license? Explain. (2%) SUGGESTED
ANSWER:
A. The marriage with Quercia is void. The exemption from
the requirement of a marriage license under Art, 34, Family
Code, requires that the man and woman must have lived
together as husband and wife for at least five years and
without any legal impediment to marry each other during
those five years. The cohabitation of Facundo and Quercia for
six years from 1990 to July 1, 1996 when Petra died was one
with a legal impediment hence, not in compliance with the
requirement of law. On other hand, the cohabitation
thereafter until the marriage on July 1, 2000, although free
from legal impediment, did not meet the 5-year cohabitation
requirement.
ALTERNATIVE ANSWER:
The marriage of Facundo and Quercia is VALID. The second
marriage was solemnized on July 1, 2000, when the Family
code was already affective. The family code took effect on
August 3, 1988. Under the Family Code, no marriage license is
required if the parties have been cohabiting for the period of
five years and there is no legal impediment. There must no
legal impediment ONLY AT THE TIME OF THE
SOLEMNIZATION OF THE MARRIAGE, and not the
whole
five years period. This is clearly the intent of the code framers
(see Minutes of the 150th joint Civil Code of the Family Law
Committees held on August 9, 1986). Also, in Manzano V.
Sanchez, AM NO. MT 00-129, March 8, 2001, the Supreme
Court said that, as one of the requisites for the exception to
apply, there must be no legal impediment at the time of the
from college, A and B decided to break their relation and
This is different from the case of Ninl V. Bayadog, (328
marriage. The Supreme Court did not say that the legal
impediment must exist all throughout the five-year period.
SCRA 122 [2000]). In the said case, the situation occurred during
the Relations of the new Civil Code where Article 76 thereof
clearly provides that during the five-year cohabitation, the
parties must be unmarried. This is not so anymore in the Family
Code. The Change in the Family Code is significant. If the
second marriage occurred before the effectivity of the Family
Code, the answer would that be that the marriage is void.
B. Does Sotero have the personality to seek the declaration of
nullity of the marriage, especially now that Facundo is
already deceased? Explain. (3%) SUGGESTED
ANSWER:
B. A void marriage may be questioned by any interested party
in any proceeding where the resolution of the issue is material.
Being a compulsory heir, Soterro has the personality to
question the validity of the marriage of Facundo and Quercia.
Otherwise, his participation in the estate on Facundo would be
affected. (Ninl V. Bayadog, 328 SCRA 122 [2000] ).
Marriage; Requisites; Solemnizing Officers (1994)
1} The complete publication of the Family Code was made on
August 4, 1987. On September 4, 1987, Junior Cruz and
Gemma Reyes were married before a municipal mayor. Was
the marriage valid? 2) Suppose the couple got married on
September 1, 1994 at the Manila Hotel before the Philippine
Consul General to Hongkong, who was on vacation in Manila.
The couple executed an affidavit consenting to the celebration
of the marriage at the Manila Hotel. Is the marriage valid?
SUGGESTED ANSWER:
1) a) Yes, the marriage is valid. The Family Code took
effect on August 3, 1988. At the time of the marriage on
September 4, 1987, municipal mayors were empowered to
solemnize marriage under the Civil Code of 1950.
2) a) The marriage is not valid. Consuls and vice-
consuls are empowered to solemnize marriages between
Philippine citizens abroad in the consular office of the foreign
country to which they were assigned and have no power to
solemnize marriage on Philippine soil.
b) A Philippine consul is authorized by law to solemnize
marriages abroad between Filipino citizens. He has no authority
to solemnize a marriage in the Philippines. Consequently, the
marriage in question is void, unless either or both of the
contracting parties believed in good faith that the consul
general had authority to solemnize their marriage in which case
the marriage is valid.
Marriage; Requisites; Void Marriage (1993)
A and B, both 18 years old, were sweethearts studying in
Manila. On August 3, 1988, while in first year college, they
eloped. They stayed in the house of a mutual friend in town X,
where they were able to obtain a marriage license. On August
30, 1988, their marriage was solemnized by the town mayor of
X in his office. Thereafter, they returned to Manila and
continued to live separately in their respective boarding
Philippine Law, his marriage to Anne is void because of a
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
houses, concealing from their parents, who were living in the
province what they had done. In 1992, after graduation parted
ways. Both went home to their respective towns to live and
work. 1) Was the marriage of A and B solemnized on August
30, 1988 by the town mayor of X in his office a valid marriage?
Explain your answer. 2) Can either or both of them contract
marriage with another person without committing bigamy?
Explain your answer.
SUGGESTED ANSWER:
1) The marriage of A and B is void because the
solemnizing officer had no legal authority to solemnize the
marriage. But if either or both parties believed in good faith that
the solemnizing officer had the legal authority to do so, the
marriage is voidable because the marriage between the parties,
both below 21 years of age, was solemnized without the
consent of the parents. (Art. 35, par. (2) and Art. 45 par. (1),
Family Code)
2) Either or both of the parties cannot contract marriage
in the Philippines with another person without committing
bigamy, unless there is compliance with the requirements of
Article 52 Family Code, namely: there must be a judgment of
annulment or absolute nullity of the marriage, partition and
distribution of the properties of the spouses and the delivery of
their children's presumptive legitimes, which shall be recorded
in the appropriate Civil Registry and Registry of Property,
otherwise the same shall not affect third persons and the
subsequent marriage shall be null and void. (Arts. 52
and 53. Family Code)
ALTERNATIVE ANSWER:
2) Yes, they can. The subsequent marriage contracted by one
of the parties will not give rise to bigamy even in the absence
of a court declaration of nullity of the first marriage. The
subsistence of a prior valid marriage is an indispensable element
of the crime of bigamy. The prior court declaration of nullity of
the first marriage is required by the Family Code only for the
purpose of the validity of the subsequent marriage, not as an
element of the crime of bigamy.
Marriage; Void Marriages (2004)
A. BONI and ANNE met while working overseas. They
became sweethearts and got engaged to be married on New
Years Eve aboard a cruise ship in the Caribbean. They took
the proper license to marry in New York City, where there is a
Filipino consulate. But as planned the wedding ceremony was
officiated by the captain of the Norwegian-registered vessel in
a private suite among selected friends.
Back in Manila, Anne discovered that Boni had been married
in Bacolod City 5 years earlier but divorced in Oslo only last
year. His first wife was also a Filipina but now based in Sweden.
Boni himself is a resident of Norway where he and Anne plan
to live permanently.
Anne retains your services to advise her on whether her
marriage to Boni is valid under Philippine law? Is there
anything else she should do under the circumstances? (5%)
SUGGESTED ANSWER:
If Boni is still a Filipino citizen, his legal capacity is governed by
Philippine Law (Art. 15 Civil Code). Under
prior existing marriage which was not dissolved by the divorce
decreed in Oslo. Divorce obtained abroad by a Filipino is not
recognized.
If Boni was no longer a Filipino citizen, the divorce is valid.
Hence, his marriage to Anne is valid if celebrated in
accordance with the law of the place where it was celebrated.
Since the marriage was celebrated aboard a vessel of
Norwegian registry, Norwegian law applies. If the Ship
Captain has authority to solemnize the marriage aboard his
ship, the marriage is valid and shall be recognized in the
Philippines.
As to the second question, if Boni is still a Filipino, Anne can
file an action for declaration of nullity of her marriage to him.
Marriage; Void Marriages (2006)
Gigi and Ric, Catholics, got married when they were 18 years
old. Their marriage was solemnized on August 2, 1989 by
Ric's uncle, a Baptist Minister, in Calamba, Laguna. He
overlooked the fact that his license to solemnize marriage
expired the month before and that the parties do not belong
to his congregation. After 5 years of married life and blessed
with 2 children, the spouses developed irreconcilable
differences, so they parted ways. While separated, Ric fell in
love with Juliet, a 16 year-old sophomore in a local college and
a Seventh-Day Adventist. They decided to get married with
the consent of Juliet's parents. She presented to him a birth
certificate showing she is 18 years old. Ric never doubted her
age much less the authenticity of her birth certificate. They got
married in a Catholic church in Manila. A year after, Juliet
gave birth to twins, Aissa and Aretha.
(1) What is the status of the marriage between Gigi and
Ric valid, voidable or void? Explain. (2.5%)
SUGGESTED ANSWER: Even if the Minister's license expired, the
marriage is valid if either or both Gigi and Ric believed in good
faith that he had the legal authority to solemnize marriage.
While the authority of the solemnizing officer is a formal
requisite of marriage, and at least one of the parties must
belong to the solemnizing officer's church, the law provides
that the good faith of the parties cures the defect in the lack of
authority of the solemnizing officer
(Art. 35 par. 2, Family Code; Sempio-Diy, p. 34; Rabuya, The
Law on Persons and Family Relations, p. 208).
The absence of parental consent despite their having married
at the age of 18 is deemed cured by their continued
cohabitation beyond the age of 21. At this point, their
marriage is valid (See Art. 45, Family Code).
(2) What is the status of the marriage between Ric and
Juliet valid, voidable or void? (2.5%) SUGGESTED
ANSWER: The marriage between Juliet and Ric is void. First of
all, the marriage is a bigamous marriage not falling under
Article 41 [Art. 35(4)Family Code], A subsisting marriage
constitutes a legal impediment to remarriage. Secondly, Juliet
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
is below eighteen years of age. The marriage is void even if
consented to by her parents
[Art. 35(1), Family Code]. The fact that Ric was not aware
of her real age is immaterial.
(3) Suppose Ric himself procured the falsified birth
certificate to persuade Juliet to marry him despite her
minority and assured her that everything is in order.
He did not divulge to her his prior marriage with Gigi.
What action, if any, can Juliet take against him?
Explain.
(2.5%)
SUGGESTED ANSWER: Juliet can file an action for the
declaration of nullity of the marriage on the ground that he
willfully caused loss or injury to her in a manner that is
contrary to morals, good customs and public policy [Art. 21,
New Civil Code]. She may also bring criminal actions for
seduction, falsification, illegal marriage and bigamy against
Ric.
(4) If you were the counsel for Gigi, what action/s will you
take to enforce and protect her interests? Explain.
(2.5%)
SUGGESTED ANSWER: I would file an action to declare the
marriage between Juliet and Ric null and void ab initio and for
Ric's share in the co-ownership of that marriage to be forfeited
in favor and considered part of the absolute community in the
marriage between Gigi and Ric [Arts. 148 & 147, Family
Code]. I would also file an action for damages against Ric on
the grounds that his acts constitute an abuse of right and they
are contrary to law and morals, causing damages to Gigi (See
Arts 19, 20, 21, New Civil Code).
Marriage; Void Marriages; Psychological Incapacity
(2002)
A. Give a brief definition or explanation of the term
psychological incapacity as a ground for the declaration
of nullity of a marriage. (2%)
B. If existing at the inception of marriage, would the
state of being of unsound mind or the concealment of drug
addiction, habitual alcoholism, homosexuality or lesbianism
be considered indicia of psychological incapacity? Explain.
(2%).
SUGGESTED ANSWER:
A. PSYCHOLOGICAL INCAPACITY is a mental
disorder of the most serious type showing the incapability of
one or both spouses to comply the essential marital obligations
of love, respect, cohabitation, mutual help and support, trust
and commitment. It must be characterized by Juridical
antecedence, gravity and incurability and its root causes must
be clinically identified or examined. (Santos v. CA, 240 SCRA 20
[1995]).
B. In the case of Santos v. Court of Appeals, 240 SCRA 20 (1995),
the Supreme Court held that being of unsound mind, drug
addiction, habitual alcoholism, lesbianism or homosexuality
may be indicia of psychological incapacity, depending on the
degree of severity of the disorder. However, the concealment
Under Article 213 of the Family Code, no child under 7
of drug addiction, habitual alcoholism, lesbianism or
homosexuality is a ground of annulment of marriage.
Parental Authority; Child under 7 years of age
(2006)
years of age shall be separated from the mother unless the court
finds compelling reasons to order otherwise.
(1) Explain the rationale of this provision. (2.5%)
SUGGESTED ANSWER:
The rationale of the 2nd paragraph of Article 213 of the Family
Code is to avoid the tragedy of a mother who sees her baby torn
away from her. It is said that the maternal affection and care during
the early years of the child are generally needed by the child more
than paternal care
(Hontiveros v. IAC, G.R. No. 64982, October 23, 1984; Tolentino,
Commentaries and Jurisprudence on the Civil Code, Volume
One, pp. 718-719). The general rule is that a child below 7 years
old shall not be separated from his mother due to his basic need
for her loving care (Espiritu v. C.A., G.R. No.
115640, March 15,1995).
(2) Give at least 3 examples of "compelling reasons"
which justify the taking away from the mother's custody of
her child under 7 years of age. (2.5%) SUGGESTED
ANSWER:
a. The mother is insane (Sempio-Diy, Handbook on the
Family Code of the Philippines, pp. 296-297); The
mother is sick with a disease that is communicable and
might endanger the health and life of the child;
The mother has been maltreating the child;
The mother is engaged in prostitution;
The mother is engaged in adulterous
relationship;
The mother is a drug addict; The mother is a
habitual drunk or an
alcoholic;
Parental Authority; Special Parental Authority;
Liability of The mother is in jail or serving sentence.
Teachers (2003)
If during class hours, while the teacher was chatting with other
teachers in the school corridor, a 7 year old male pupil stabs the
eye of another boy with a ball pen during a fight, causing
permanent blindness to the victim, who could be liable for
damages for the boys injury: the teacher, the school authorities,
or the guilty boys parents? Explain.
SUGGESTED ANSWER:
The school, its administrators, and teachers have special
parental authority and responsibility over the minor child while
under their supervision, instruction or custody (Article 218,
FC). They are principally and solidarily liable for the damages
caused by the acts or omissions of the unemancipated minor
unless they exercised the proper diligence required under the
circumstances (Article 219, FC).
In the problem, the TEACHER and the SCHOOL
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
AUTHORITIES are liable for the blindness of the victim,
because the student who cause it was under their special
parental authority and they were negligent. They were negligent
because they were chatting in the corridor during the class
period when the stabbing incident occurred. The incident could
have been prevented had the teacher been inside the classroom
at that time. The guilty boys PARENTS are subsidiarily liable
under Article 219 of the Family Code. Parental Authority;
Substitute vs. Special (2004)
Distinguish briefly but clearly between: Substitute parental
authority and special parental authority.
SUGGESTED ANSWER:
In substitute parental authority, the parents lose their parental
authority in favor of the substitute who acquires it to the
exclusion of the parents.
In special parental authority, the parents or anyone exercising
parental authority does not lose parental authority. Those who
are charged with special parental authority exercise such
authority only during the time that the child is in their custody
or supervision.
Substitute parental authority displaces parental authority while
special parental authority concurs with parental authority.
Paternity & Filiation (1999)
(a) Two (2) months after the death of her husband who was
shot by unknown criminal elements on his way home from
office, Rose married her childhood boyfriend, and seven (7)
months after said marriage, she delivered a baby. In the
absence of any evidence from Rose as to who is her child's
father, what status does the law give to said child? Explain.
(2%) SUGGESTED
ANSWER:
(a) The child is legitimate of the second marriage under
Article 168(2) of the Family Code which provides that a "child
born after one hundred eighty days following the celebration of
the subsequent marriage is considered to have been conceived
during such marriage, even though it be born within three
hundred days after the termination of the former marriage."
Paternity & Filiation; Proofs (1999)
(b) Nestor is the illegitimate son of Dr. Perez. When Dr.
Perez died, Nestor intervened in the settlement of his father's
estate, claiming that he is the illegitimate son of said deceased,
but the legitimate family of Dr. Perez is denying Nestor's claim.
What evidence or evidences should Nestor present so that he
may receive his rightful share in his father's estate?
(3%)
SUGGESTED ANSWER:
(b) To be able to inherit, the illegitimate filiation of Nestor
must have been admitted by his father in any of the following:
(1) the record of birth appearing in the civil register,
(2) a final judgment,
(3) a public document signed by the father, or
(4) a private handwritten document signed by the lather
(Article 17S in relation to Article 172 of the Family Code).
Paternity & Filiation; Artificial Insemination;
Formalities(2006)
Ed and Beth have been married for 20 years without
children. Desirous to have a baby, they consulted Dr.
Jun Canlas, a , prominent medical specialist on
human fertility. He advised Beth to undergo artificial
insemination. It was found that Eds sperm count was
inadequate to induce pregnancy Hence, the couple
looked for a willing donor. Andy the brother of Ed,
readily
consented to donate his
sperm. After a series of test, Andy's sperm was medically
introduced into Beth's ovary. She became pregnant
and 9 months later, gave birth to a baby boy, named
Alvin.
(1) Who is the Father of Alvin? Explain. (2.5%)
SUGGESTED ANSWER:
Andy is the biological father of Alvin being the source of the
sperm. Andy is the legal father of Alvin because there was
neither consent nor ratification to the artificial insemination.
Under the law, children conceived by artificial insemination are
legitimate children of the spouses, provided, that both of them
authorized or ratified the insemination in a written instrument
executed and signed by both of them before the birth of the
child (Art. 164, Family Code).
(2) What are the requirements, if any, in order for Ed
to establish his paternity over Alvin. (2.5%) SUGGESTED
ANSWER:
The following are the requirements for Ed to establish his
paternity over Alvin:
The artificial insemination has been authorized or
ratified by the spouses in a written instrument executed and
signed by them before the birth of the child; and The
written instrument is recorded in the civil
registry together with the birth certificate of the child (Art.
164, 2nd paragraph, Family Code).
Paternity & Filiation; Common-Law Union (2004)
A. RN and DM, without any impediment to marry each other,
had been living together without benefit of church blessings.
Their common-law union resulted in the birth of ZMN. Two
years later, they got married in a civil ceremony.
Could ZMN be legitimated? Reason. (5%) SUGGESTED
ANSWER:
ZMN was legitimated by the subsequent marriage of RN and
DM because at the time he was conceived, RN and DM could
have validly married each other. Under the Family Code
children conceived and born outside of wedlock of parents
who, at the time of the former's conception, were not
disqualified by any impediment to marry each other are
legitimated by the subsequent marriage of the parents.
Paternity & Filiation; Proofs; Limitations; Adopted
Child
(1995)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Abraham died intestate on 7 January 1994 survived by his son
Braulio. Abraham's older son Carlos died on 14 February
1990. Danilo who claims to be an adulterous child of Carlos
intervenes in the proceedings for the settlement of the estate
of Abraham in representation of Carlos. Danilo was legally
adopted on 17 March 1970 by Carlos with the consent of the
" latter's wife.

1. Under the Family Code, how may an illegitimate

filiation be proved? Explain.
2. As lawyer for Danilo, do you have to prove Danilo's
illegitimate filiation? Explain.
3. Can Danilo inherit from Abraham in representation
of his father Carlos? Explain.
SUGGESTED ANSWER:
1. Under Art. 172 in relation to Art. 173 andArt. 175 of the
FC, the filiation of illegitimate children may be established
CIVIL LAW (Year 1990-2006)
Answers to the BAR as Arranged by Topics
in the same way and by the same evidence as legitimate
children. Art. 172 provides that the filiation of legitimate
children is established by any of the following: (1) the record of
birth appearing in the civil register or a final Judgment; or (2)
an admission of legitimate filiation in a public document or a
private handwritten instrument and signed by the parent
concerned. In the absence of the foregoing evidence, the
legitimate filiation shall be proved by: (1) the open and
continuous possession of the status of a legitimate child; or (2)
any other means allowed by the Rules of Court and special laws.
SUGGESTED ANSWER:
2. No. Since Danilo has already been adopted by Carlos,
he ceased to be an illegitimate child. An adopted child acquires
all the rights of a legitimate child under Art, 189 of the FC.
SUGGESTED ANSWER:
3. No, he cannot. Danilo cannot represent Carlos as the
latter's adopted child in the inheritance of Abraham because
adoption did not make Danilo a legitimate grandchild of
Abraham. Adoption is personal between Carlos and Danilo. He
cannot also represent Carlos as the latter's illegitimate child
because in such case he is barred by Art. 992 of the NCC from
inheriting from his illegitimate grandfather
Abraham.
ALTERNATIVE ANSWER:
An adopted child's successional rights do not include the right
to represent his deceased adopter in the inheritance of the
latter's legitimate parent, in view of Art. 973 which provides
that in order that representation may take place, the
representative must himself be capable of succeeding the
decedent. Adoption by itself did not render Danilo an heir of
the adopter's legitimate parent. Neither does his being a
grandchild of Abraham render him an heir of the latter because
as an illegitimate child of Carlos, who was a legitimate child of
Abraham, Danilo is incapable of succeeding Abraham under
Art. 992 of the Code.
Paternity & Filiation; Recognition of illegitimate
Child (2005)
Steve was married to Linda, with whom he had a daughter,
Tintin. Steve fathered a son with Dina, his secretary of 20 years,
whom Dina named Joey, born on September 20, 1981. Joey's
birth certificate did not indicate the father's name.
Steve died on August 13, 1993, while Linda died on December
3, 1993, leaving their legitimate daughter, Tintin, as sole heir.
On May 16, 1994, Dina filed a case on behalf of Joey, praying
that the latter be declared an acknowledged illegitimate son of
Steve and that Joey be given his share in Steve's estate, which is
now being solely held by Tintin. Tintin put up the defense that
an action for recognition shall only be filed during the lifetime
of the presumed parents and that the exceptions under Article
285 of the Civil Code do not apply to him since the said article
has been repealed by the Family Code. In any case, according
to Tintin, Joey's birth certificate does not show that Steve is his
father.
before the death of C. Bringing his family later to Manila, B
recognition of an illegitimate child can be brought at any
a) Does Joey have a cause of action against Tintin for
recognition and partition? Explain. (2%) SUGGESTED
ANSWER:
No, Joey does not have a cause of action against Tintin for
recognition and partition. Under Article 175 of the Family Code, as a
general rule, an action for compulsory
time during the lifetime of the child. However, if the action is based
on "open and continuous possession of the status of an illegitimate
child, the same can be filed during the lifetime of the putative father."
In the present case, the action for compulsory recognition was
filed by Joey's mother, Dina, on May 16,1994, after the death
of Steve, the putative father. The action will prosper if Joey
can present his birth certificate that bears the signature of his
putative father. However, the facts clearly state that the birth
certificate of Joey did not indicate the father's name. A birth
certificate not signed by the alleged father cannot be taken as a
record of birth to prove recognition of the child, nor can said
birth certificate be taken as a recognition in a public
instrument. (Reyes v. Court of Appeals, G.R. No. 39537, March
19, 1985) Consequently, the action filed by Joey's mother has
already prescribed.
b) Are the defenses set up by Tintin tenable? Explain.
(2%) SUGGESTED
ANSWER:
Yes, the defenses of Tintin are tenable. In Tayag v. Court of
Appeals (G.R. No. 95229, June 9,1992), a complaint to compel
recognition of an illegitimate child was brought before
effectivity of the Family Code by the mother of a minor child
based on "open and continuous possession of the status of an
illegitimate child." The Supreme Court held that the right of
action of the minor child has been vested by the filing of the
complaint in court under the regime of the Civil Code and
prior to the effectivity of the Family Code. The ruling in Tayag
v. Court of Appeals finds no application in the instant case.
Although the child was born before the effectivity of the
Family Code, the complaint was filed after its effectivity.
Hence, Article 175 of the Family Code should apply and not
Article 285 of the Civil Code.
c) Supposing that Joey died during the pendency of the
action, should the action be dismissed? Explain. (2%)
SUGGESTED ANSWER:
If Joey died during the pendency of the action, the action
should still be dismissed because the right of Joey or his heirs
to file the action has already prescribed. (Art. 175, Family Code)
Paternity & Filiation; Rights of Legitimate Children
(1990)
B and G (college students, both single and not disqualified to
marry each other) had a romantic affair, G was seven months
in the family way as of the graduation of B. Right after
graduation B went home to Cebu City. Unknown to G, B had
a commitment to C (his childhood sweetheart) to marry her
Paulita left the conjugal home because of the excessive
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
after getting his college degree. Two weeks after B marriage
in Cebu City, G gave birth to a son E in Metro Manila. After
ten years of married life in Cebu, B became a widower by the
sudden death of C in a plane crash. Out of the union of B
and C, two children, X and Y were born. Unknown to C
while on weekend trips to Manila during the last 5 years of
their marriage, B invariably visited G and lived at her
residence and as a result of which, they renewed their
relationship. A baby girl F was born to B and G two years
finally married G. Recently. G died. What are the rights of B's
four children: X and Y of his first marriage; and E and F, his
children with G? Explain your answer.
SUGGESTED ANSWER:
Under the facts stated, X and Y are legitimate children of B and
C. E is the legitimate children of B and G. E is the legitimated
child of B&G. F is the illegitimate child of B and C. As
legitimate children of B and C, X and Y have the following
rights: 1) To bear the surnames of the father and the mother, in
conformity with the provisions of the Civil Code on Surnames;
2) To receive support from their parents, their ascendants, and
in proper cases, their brothers and sisters, in conformity with
the provisions of the Family Code on Support; and
3) To be entitled to the legitime and other successional
rights granted to them by the Civil Code. (Article 174, Family
Code).
E is the legitimated child of B and G. Under Art. 177 of
the Family Code, only children conceived and born outside of
wedlock of parents who, at the time of the conception of the
former, were not disqualified by any impediment to marry each
other may be legitimated. E will have the same rights as X and
Y.
F is the illegitimate child of B and G. F has the right to
use the surname of G, her mother, and is entitled to support as
well as the legitime consisting of 1/2 of that of each of X, Y
and E. (Article 176, Family Code)
Presumptive Legitime (1999)
What do you understand by "presumptive legitime", in what
case or cases must the parent deliver such legitime to the
children, and what are the legal effects in each case if the
parent fails to do so? (5%)
SUGGESTED ANSWER:
PRESUMPTIVE LEGITIME is not defined in the law. Its
definition must have been taken from Act 2710, the Old
Divorce Law, which required the delivery to the legitimate
children of "the equivalent of what would have been due to
them as their legal portion if said spouse had died intestate
immediately after the dissolution of the community of
property." As used in the Family Code, presumptive legitime is
understood as the equivalent of the legitimate children's
legitimes assuming that the spouses had died immediately after
the dissolution of the community of property.
Presumptive legitime is required to be delivered to the common
children of the spouses when the marriage is annulled or
declared void ab initio and possibly, when the conjugal
partnership or absolute community is dissolved as in the case
of legal separation. Failure of the parents to deliver the
presumptive legitime will make their subsequent marriage null
and void under Article 53 of the Family Code. Property
Relations; Absolute Community (1994)
drinking of her husband, Alberto. Paulita, out of her own
endeavor, was able to buy a parcel of land which she was able
to register under her name with the addendum "widow." She
also acquired stocks in a listed corporation registered in her
name. Paulita sold the parcel of land to Rafael, who first
examined the original of the transfer certificate of title. 1) Has
Alberto the right to share in the shares of stock acquired by
Paulita? 2) Can Alberto recover the land from Rafael?
SUGGESTED ANSWER:
1. a) Yes. The Family Code provides that all property acquired
during the marriage, whether the acquisition appears to have
been made, contracted or registered in the name of one or both
spouses, is presumed to be absolute community property unless
the contrary is proved.
b) Yes. The shares are presumed to be absolute
community property having been acquired during the marriage
despite the fact that those shares were registered only in her
name. Alberto's right to claim his share will only arise,
however, at dissolution.
c) The presumption is still that the shares of stock are
owned in common. Hence, they will form part of the absolute
community or the conjugal partnership depending on what the
property Relations is.
d) Since Paulita acquired the shares of stock by onerous
title during the marriage, these are part of the conjugal or
absolute community property, as the case maybe (depending
on whether the marriage was celebrated prior to. or after, the
effectivity of the Family Code). Her physical separation from
her husband did not dissolve the community of property.
Hence, the husband has a right to share in the shares of stock.
SUGGESTED ANSWER:
2) a) Under a community of property, whether absolute or
relative, the disposition of property belonging to such
community is void if done by just one spouse without the
consent of the other or authority of the proper court. However,
the land was registered in the name of Paulita as "widow".
Hence, the buyer has the right to rely upon what appears in the
record of the Register of Deeds and should, consequently, be
protected. Alberto cannot recover the land from Rafael but
would have the right of recourse against his wife
b) The parcel of land is absolute community property having
been acquired during the marriage and through Paulita's
industry despite the registration being only in the name of
Paulita. The land being community property, its sale to Rafael
without the consent of Alberto is void. However, since the land
is registered in the name of Paulita as widow, there is nothing
in the title which would raise a suspicion for Rafael to make
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
inquiry. He, therefore, is an innocent purchaser for value from
whom the land may no longer be recovered.
c) No. Rafael is an innocent purchaser in good faith who,
upon relying on the correctness of the certificate of title,
acquires rights which are to be protected by the courts.
Under the established principles of land registration law, the
presumption is that the transferee of registered land is not
aware of any defect in the title of the property he purchased.
(See Tojonera v. Court of Appeals, 103 SCRA 467). Moreover,
the person dealing with registered land may safely rely on the
correctness of its certificate of title and the law will in no way
oblige him to go behind the certificate to determine the
condition of the property. [Director of Lands v. Abache, et al.
73 Phil. 606). No strong considerations of public policy have
been presented which would lead the Court to reverse the
established and sound doctrine that the buyer in good faith of
a registered parcel of land does not have to look beyond the
Torrens Title and search for any hidden defect or inchoate right
which may later invalidate or diminish his right to what he
purchased. (Lopez v. Court of Appeals. 189 SCRA 271)
d) The parcel of land is absolute community property having
been acquired during the marriage and through Paulita's
industry despite registration only in the name of Paulita. The
land being community property, its sale to Rafael without the
consent of Alberto is void.
Property Relations; Ante Nuptial Agreement (1995)
Suppose Tirso and Tessie were married on 2 August 1988
without executing any ante nuptial agreement. One year after
their marriage, Tirso while supervising the clearing of Tessie's
inherited land upon the latter's request, accidentally found the
treasure not in the new river bed but on the property of Tessie.
To whom shall the treasure belong?
Explain.
SUGGESTED ANSWER:
Since Tirso and Tessie were married before the effectivity of
the Family Code, their property relation is governed by conjugal
partnership of gains. Under Art. 54 of the Civil Code, the share
of the hidden treasure which the law awards to the finder or the
proprietor belongs to the conjugal partnership of gains. The
one-half share pertaining to Tessie as owner of the land, and
the one-half share pertaining to Tirso as finder of the treasure,
belong to the conjugal partnership of gains.
Property Relations; Conjugal Partnership of Gains
(1998)
In 1970, Bob and Issa got married without executing a marriage
settlement. In 1975, Bob inherited from his father a residential
lot upon which, in 1981, he constructed a two-room bungalow
with savings from his own earnings. At that time, the lot was
worth P800.000.00 while the house, when finished cost
P600,000.00. In 1989 Bob died, survived only by his wife, Issa
and his mother, Sofia. Assuming that the relative values of both
assets remained at the same proportion:
1. State whether Sofia can rightfully claim that the house
and lot are not conjugal but exclusive property of her
1. Since Bob and Sofia got married In 1970, then the law
deceased son. [3%]
2. Will your answer be the same if Bob died before
August 3, 1988? [2%] SUGGESTED
ANSWER: that governs is the New
Civil Code (Persons), in which case,
the property relations that should be
applied as regards the property of the
spouses is the system of relative
community or conjugal partnership
of gains (Article 119, Civil Code). By
conjugal partnership of gains, the
husband and the wife place in a
common fund the fruits of their
separate property and the income
from their work or Industry (Article
142, Civil Code). In this instance, the
lot inherited by Bob in 1975 is his
own separate property, he having
acquired the same by lucrative title
(par. 2, Art. 148, Civil Code).
However, the house constructed
from his own savings in 1981 during
the subsistence of his marriage with
Issa is conjugal property and not
exclusive property in accordance
with the principle of "reverse
accession" provided for in Art. 158,
Civil Code.
ANOTHER ANSWER:
1. Sofia, being her deceased son's legal heir concurring
with his surviving spouse (Arts. 985, 986 and 997, Civil Code),
may rightfully claim that the house and lot are not conjugal but
belong to the hereditary estate of Bob. The value of the land
being more than the cost of the improvement (Art. 120, Family
Code).
SUGGESTED ANSWER:
2. Yes, the answer would still be the same. Since Bob and
Issa contracted their marriage way back in 1970, then the
property relations that will govern is still the relative community
or conjugal partnership of gains (Article 119, Civil Code). It will
not matter if Bob died before or after August 3. 1988
(effectivity date of the Family Code], what matters is the date
when the marriage was contracted. As Bob and Issa contracted
their marriage way back in 1970. the property relation that
governs them is still the conjugal partnership of
gains. (Art. 158, Civil Code)
ANOTHER ANSWER:
2. If Bob died be fore August 3, 1988. which is the date the
Family Code took effect, the answer will not be the same. Art.
158. Civil Code, would then apply. The land would then be
deemed conjugal, along with the house, since conjugal funds
were used in constructing it. The husband's estate would be
entitled to a reimbursement of the value of the land from
conjugal partnership funds.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Property Relations; Marriage Settlement; Conjugal
Partnership of Gains (2005)
Gabby and Mila got married at Lourdes Church in Quezon City
on July 10, 1990. Prior thereto, they executed a marriage
settlement whereby they agreed on the regime of conjugal
partnership of gains. The marriage settlement was registered in
the Register of Deeds of Manila, where Mila is a resident. In
1992, they jointly acquired a residential house and lot, as well as
a condominium unit in Makati. In 1995, they decided to change
their property relations to the regime of complete separation of
property. Mila consented, as she was then engaged in a lucrative
business. The spouses then signed a private document
dissolving their conjugal partnership and agreeing on a
complete separation of property.
Thereafter, Gabby acquired a mansion in Baguio City, and a
5-hectare agricultural land in Oriental Mindoro, which he
registered exclusively in his name. In the year 2000, Mila's
business venture failed, and her creditors sued her for
P10,000,000.00. After obtaining a favorable judgment, the
creditors sought to execute on the spouses' house and lot and
condominium unit, as well as Gabby's mansion and
agricultural land.
a) Discuss the status of the first and the amended
marriage settlements. (2%) SUGGESTED ANSWER:
The marriage settlement between Gabby and Mila adopting
the regime of conjugal partnership of gains still subsists. It is
not dissolved by the mere agreement of the spouses during
the marriage. It is clear from Article 134 of the Family Code
that in the absence of an express declaration in the marriage
settlement, the separation of property between the spouses
during the marriage shall not take place except by judicial
order.
b) Discuss the effects of the said settlements on the
properties acquired by the spouses. (2%) SUGGESTED
ANSWER:
The regime of conjugal partnership of gains governs the
properties acquired by the spouses. All the properties acquired
by the spouses after the marriage belong to the conjugal
partnership. Under Article 116 of the Family Code, even if
Gabby registered the mansion and 5-hectare agricultural land
exclusively in his name, still they are presumed to be conjugal
properties, unless the contrary is proved.
c) What properties may be held answerable for
Mila's obligations? Explain. (2%) ALTERNATIVE
ANSWER:
Since all the properties are conjugal, they can be held
answerable for Mila's obligation if the obligation redounded to
the benefit of the family. (Art. 121 [3], Family Code) However,
the burden of proof lies with the creditor claiming against the
properties. (Ayala Investment v. Court of Appeals,
G.R. No. 118305, February 12,1998, reiterated in
Homeowners Savings & Loan Bank v. Dailo, G.R. No. 153802,
March 11, 2005)
ALTERNATIVE ANSWER:
Except for the residential house which is the family home, all
other properties of Gabby and Mila may be held answerable
for Mila's obligation. Since the said properties are conjugal in
nature, they can be held liable for debts and obligations
contracted during the marriage to the extent that the family
was benefited or where the debts were contracted by both
spouses, or by one of them, with the consent of the other.
A family home is a dwelling place of a person and his family.
It confers upon a family the right to enjoy such property,
which must remain with the person constituting it as a family
home and his heirs. It cannot be seized by creditors except in
special cases. (Taneo, Jr. v. Court of Appeals, G.R. No. 108532,
March 9, 1999)
Bar Candidates Patricio Mahigugmaon and Rowena Amor
Property Relations; Marriage Settlements (1991)
decided to marry each other before the last day of the 1991
Bar Examinations. They agreed to execute a Marriage
Settlement. Rowena herself prepared the document in her
own handwriting. They agreed on the following: (1) a conjugal
partnership of gains; (2) each donates to the other fifty
percent (50%) of his/her present property, (3) Rowena shall
administer the conjugal partnership property; and (4) neither
may bring an action for the annulment or declaration of nullity
of their marriage. Both signed the agreement in the presence
of two (2) witnesses. They did not, however, acknowledge it
before a notary public.
A. As to form, is the Marriage Settlement valid? May it
be registered in the registry of property? If not, what steps
must be taken to make it registerable? B. Are the
stipulations valid?
C. If the Marriage Settlement is valid as to form and the
above stipulations are likewise valid, does it now follow that
said Marriage Settlement is valid and enforceable?
SUGGESTED ANSWER:
A. Yes, it is valid as to form because it is in writing. No,
it cannot be registered in the registry of property because it is
not a public document. To make it registerable, it must be
reformed and has to be notarized.
SUGGESTED ANSWER:
B. Stipulations (1) and (3) are valid because they are not
contrary to law. Stipulation (4) is void because it is contrary
to law. Stipulation (2) is valid up to 1/5 of their respective
present properties but void as to the excess (Art 84, Family
Code).
SUGGESTED ANSWER:
C. No. on September 15, 1991, the marriage settlement
is not yet valid and enforceable until the celebration of the
marriage, to take place before the last day of the 1991 bar
Examinations.
Property Relations; Marriage Settlements (1995)
On 10 September 1988 Kevin, a 26-year old businessman,
married Karla, a winsome lass of 18. Without the knowledge
of their parents or legal guardians, Kevin and Karla entered
into an ante-nuptial contract the day before their marriage
stipulating that conjugal partnership of gains shall govern their
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
marriage. At the time of their marriage Kevin's estate was
worth 50 Million while Karla's was valued at 2 Million. A
month after their marriage Kevin died in a freak helicopter
accident. He left no will, no debts, no obligations. Surviving
Kevin, aside from Karla, are his only relatives: his brother Luis to the benefit of the family. However, when the obligation was to
and first cousin Lilia. 1) What property Relations governed the guarantee the debt of a third party, as in the problem, the obligation is
marriage of
Kevin and Karla? Explain. 2) Determine the value of the
estate of Kevin, 3) Who are Kevin's heirs? 4) How much is
each of Kevin's heirs entitled to
inherit?
SUGGESTED ANSWER:
1. Since the marriage settlement was entered into without the
consent and without the participation of the parents (they
did not sign the document), the marriage settlement is
invalid applying Art. 78, F.C. which provides that a minor
who according to law may contract marriage may also enter
into marriage settlements but they shall be valid only if the
person who may give consent to the marriage are made parties
to the agreement. (Karla was still a minor at the time the
marriage settlement was executed in September 1988 because
the law, R.A. 6809, reducing the age of majority to 18 years
took effect on 18 December 1989). The marriage settlement
being void, the property Relations governing the marriage is,
therefore, absolute community of property, under Art. 75 of
the FC.
2. All the properties which Kevin and Karla owned at the time
of marriage became community property which shall be
divided equally between them at dissolution. Since Kevin
owned 50 Million and Karla. 2 Million, at the time of the
marriage, 52 Million constituted their community property.
Upon the death of Kevin, the community was dissolved and
half of the 52 Million or 26 Million is his share in the
community. This 26 Million therefore is his estate.
3. Karla and Luis are the Intestate heirs of Kevin.
4. They are entitled to share the estate equally under Article
1001 of the NCC. Therefore. Karla gets 13 Million and Luis
gets 13 Million.
Property Relations; Obligations; Benefit of the
Family (2000)
As finance officer of K and Co., Victorino arranged a loan of
P5 Million from PNB for the corporation. However, he was
required by the bank to sign a Continuing Surety Agreement to
secure the repayment of the loan. The corporation failed to pay
the loan, and the bank obtained a judgment against it and
Victorino, jointly and severally. To enforce the judgment, the
sheriff levied on a farm owned by the conjugal partnership of
Victorino and his wife Elsa. Is the levy proper or not? (3%)
SUGGESTED ANSWER:
The levy is not proper there being no showing that the surety
agreement executed by the husband redounded to the benefit of the
family. An obligation contracted by the husband alone is chargeable
against the conjugal partnership only when it was contracted for the
benefit of the family. When the obligation was contracted on behalf of
the family business the law presumes that such obligation will redound
presumed for the benefit of the third party, not the family. Hence, for
the obligation under the surety agreement to be chargeable against the
partnership it must be proven that the family was benefited and that
the benefit was a direct result of such agreement,
(Ayala Investment v. Ching, 286 SCRA 272)
Property Relations; Unions without Marriage (1992)
In 1989, Rico, then a widower forty (40) years of age, cohabited
with Cora, a widow thirty (30) years of age. While living
together, they acquired from their combined earnings a parcel
of riceland.
together, Rico was a salaried employee and Mabel kept
After Rico and Cora separated, Rico lived together with
Mabel, a maiden sixteen (16) years of age. While living house
for Rico and did full-time household chores for him. During
their cohabitation, a parcel of coconut land was acquired by
Rico from his savings.
After living together for one (1) year, Rico and Mabel
separated. Rico then met and married Letty, a single woman
twenty-six (26) years of age. During the marriage of Rico and
Letty, Letty bought a mango orchard out of her own personal
earnings. a) Who would own the riceland, and what property
Relations governs the ownership? Explain. b) Who would
own the coconut land, and what property Relations governs
the ownership? Explain. c) Who would own the mango
orchard, and what property Relations governs the ownership?
Explain.
SUGGESTED ANSWER:
(a) Rico and Cora are the co-owners of the riceland. The
Relations is that of co-ownership (Art. 147, Family Code,
first paragraph).
(Optional Addendum: However, after Rico's marriage to Letty, the
half interest of Rico in the riceland will then become absolute
community property of Rico and Letty.)
(b) Rico is the exclusive owner of the coconut land. The
Relations is a sole/single proprietorship (Art. 148. Family
Code, first paragraph is applicable, and not Art. 147 Family
Code).
(Optional Addendum: However, after Rico's marriage to Letty, the
coconut land of Rico will then become absolute community property of
Rico and Letty.)
(c) Rico and Letty are the co-owners. The Relations is the
Absolute Community of Property (Arts, 75,90and9l,
Family Code).
Property Relations; Unions without Marriage
(1997) Luis and Rizza, both 26 years of age and single, live
exclusively with each other as husband and wife without the
benefit of marriage, Luis is gainfully employed, Rizza is not
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
employed, stays at home, and takes charge of the household
chores. After living together for a little over twenty years, Luis
was able to save from his salary earnings during that period
the amount of P200,000.00 presently deposited in a bank. A
house and lot worth P500,000.00 was recently purchased for
the same amount by the couple. Of the P500.000.00 used by
the common-law spouses to purchase the property,
P200.000.00 had come from the sale of palay harvested from
the hacienda owned by Luis and P300,000.00 from the rentals
of a building belonging to Rizza. In fine, the sum of
P500.000.00 had been part of the fruits received during the
period of cohabitation from their separate property, a car
worth P100.000.00. being used by the common-law spouses,
was donated Just months ago to Rizza by her parents. Luis
and Rizza now decide to terminate their cohabitation, and
they ask you to give them your legal advice on the following:
(a) How, under the law should the bank deposit of
P200,000.00 the house and lot valued at P500.000.00 and the
car worth P100.000.00 be allocated to them?
Page 41 of 119
(b) What would your answer be (to the above question) had
Luis and Rizza been living together all the time, ie., since twenty
years ago, under a valid marriage?
SUGGESTED ANSWER:
a) Art. 147 of the Family Code provides in part that when a
man and a woman who are capacitated to marry each other,
live exclusively with each other as husband and wife without
the benefit of marriage or under a void marriage, their wages
and salaries shall be owned by them in equal shares and the
property acquired by both of them through their work or
industry shall be governed by the rules of coownership. In the
absence of proof to the contrary, properties acquired while
they lived together shall be presumed to have been obtained
by their Joint efforts, worker Industry, and shall be owned by
them in equal shares. A party who did not participate in the
acquisition by the other party of any property shall be deemed
to have contributed jointly in the acquisition thereof if the
former's efforts consisted in the care and maintenance of the
family and of the household. Thus: 1) the wages and salaries
of Luis in the amount of P200,000.00 shall be divided equally
between Luis and Rizza. 2) the house and lot valued at
P500.000.00 having been acquired by both of them through
work or industry shall be divided between them in proportion
to their respective contribution, in consonance with the rules
on co-ownership. Hence, Luis gets 2\5 while Rizza gets 3\5
of P500.000.00. 3) the car worth P100,000.00 shall be
exclusively owned by Rizza, the same having been donated to
her by her parents.
SUGGESTED ANSWER:
(b) The property relations between Luis and Rizza, their
marriage having been celebrated 20 years ago (under the Civil
Code) shall be governed by the conjugal partnership of gains,
under which the husband and wife place in a common fund
the proceeds, products, fruits and income from their separate
properties and those acquired by either or both spouses
through their efforts or by chance, and upon dissolution of
the marriage or of the partnership, the net gains or benefits
obtained by either or both spouse shall be divided equally
between them (Art. 142. Civil Code). Thus: 1) The salary of
Luis deposited in the bank in the amount of P200.000.00 and
the house and lot valued at P500,000.00 shall be divided
equally between Luis and Rizza. 2) However, the car worth
P100.000,00 donated to Rizza by her parents shall be
considered to her own paraphernal property, having been
acquired by lucrative title (par. 2, Art. 148, Civil Code).
Property Relations; Unions without Marriage (2000)
For five years since 1989, Tony, a bank Vice-president, and
Susan, an entertainer, lived together as husband and wife
without the benefit of marriage although they were capacitated
to many each other. Since Tony's salary was more than
enough for their needs, Susan stopped working and merely
"kept house". During that period, Tony was able to buy a lot
a) Who will be entitled to the house and lot? (3%)
and house in a plush subdivision. However, after five years,
Tony and Susan decided to separate.
SUGGESTED ANSWER:
Tony and Susan are entitled to the house and lot as coowners
in equal shares. Under Article 147 of the Family Code, when a
man and a woman who are capacitated to marry each other
lived exclusively with each other as husband and wife, the
property acquired during their cohabitation are presumed to
have been obtained by their joint efforts, work or industry and
shall be owned by them in equal shares. This is true even though
the efforts of one of them consisted merely in his or her care
and maintenance of the family and of the household.
b) Would it make any difference if Tony could not marry Susan
because he was previously married to Alice from
whom he is legally separated? (2%) SUGGESTED
ANSWER:
Yes, it would make a difference. Under Article 148 of the
Family Code, when the parties to the cohabitation could not
marry each other because of an impediment, only those
properties acquired by both of them through their actual joint
contribution of money, property, or Industry shall be owned by
them in common in proportion to their respective
contributions. The efforts of one of the parties in maintaining
the family and household are not considered adequate
contribution in the acquisition of the properties.
Since Susan did not contribute to the acquisition of the house
and lot, she has no share therein. If Tony cohabited with Susan
after his legal separation from Alice, the house and lot is his
exclusive property. If he cohabited with Susan before his legal
separation from Alice, the house and lot belongs to his
community or partnership with Alice.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
SUCCESSION
Amount of Successional Rights (2004)
Mr. XT and Mrs. YT have been married for 20 years. Suppose
the wife, YT, died childless, survived only by her husband, XT.
What would be the share of XT from her estate as inheritance?
Why? Explain. (5%) SUGGESTED ANSWER:
Under the Civil Code, the widow or widower is a legal and
compulsory heir of the deceased spouse. If the widow is the
only surviving heir, there being no legitimate ascendants,
descendants, brothers, and sisters, nephews and nieces, she
gets the entire estate.
Barrier between illegitimate & legitimate relatives
(1993)
A is the acknowledged natural child of B who died when A
was already 22 years old. When B's full blood brother, C,
died he (C) was survived by his widow and four children of
his other brother D. Claiming that he is entitled to inherit
from his father's brother C. A brought suit to obtain his
share in the estate of C. Will his action prosper?
SUGGESTED ANSWER:
No, the action of A will not prosper. On the premise that B,
C and D are legitimate brothers, as an illegitimate child of B,
A cannot inherit in intestacy from C who is a legitimate
legitimate relatives of C (i.e. the children of D as C's
brother of B. Only the wife of C in her own right and the
legitimate nephews inheriting as collateral relatives) can inherit
in intestacy. (Arts. 992, 1001, 1OO5 and 975, Civil
Code)
ALTERNATIVE ANSWER:
The action of A will not prosper. Being an illegitimate, he is
barred by Article 992 of the Civil Code from inheriting ab
intestato from the legitimate relatives of his father.
Barrier between illegitimate & legitimate relatives
(1996)
Cristina the illegitimate daughter of Jose and Maria, died
intestate, without any descendant or ascendant. Her valuable
estate is being claimed by Ana, the legitimate daughter of Jose,
and Eduardo, the legitimate son of Maria. Is either, both, or
neither of them entitled to inherit? Explain.
SUGGESTED ANSWER:
Neither Ana nor Eduardo is entitled to inherit of ab intestato
from Cristina. Both are legitimate relatives of Cristina's
illegitimate parents and therefore they fall under the
prohibition prescribed by Art. 992, NCC (Manuel v. Ferrer,
242 SCRA 477; Diaz v. Court of Appeals, 182 SCRA 427).
Collation (1993)
Joaquin Reyes bought from Julio Cruz a residential lot of 300
square meters in Quezon City for which Joaquin paid Julio the
amount of P300,000.00, When the deed was about to be
prepared Joaquin told Julio that it be drawn in the name of
Joaquina Roxas, his acknowledged natural child. Thus, the
deed was so prepared and executed by Julio. Joaquina then
built a house on the lot where she, her husband and children
resided. Upon Joaquin's death, his legitimate children sought
to recover possession and ownership of the lot, claiming that
Joaquina Roxas was but a trustee of their father. Will the
action against Joaquina Roxas prosper?
SUGGESTED ANSWER:
Yes, because there is a presumed donation in favor of
Joaquina under Art. 1448 of the Civil Code (De los Santos
v. Reyes, 27 January 1992, 206 SCRA 437). However, the
donation should be collated to the hereditary estate and the
legitime of the other heirs should be preserved.
ALTERNATIVE ANSWER:
Yes, the action against Joaquina Roxas will prosper, but only
to the extent of the aliquot hereditary rights of the legitimate
children as heirs. Joaquina will be entitled to retain her own
share as an illegitimate child, (Arts. 1440 and 1453. Civil Code;
Art. 176, F. C.)
Disinheritance vs. Preterition (1993)
Maria, to spite her husband Jorge, whom she suspected was
having an affair with another woman, executed a will,
unknown to him, bequeathing all the properties she inherited
from her parents, to her sister Miguela. Upon her death, the
will was presented for probate. Jorge opposed probate of the
will on the ground that the will was executed by his wife
How will you rule on Jorge's opposition to the probate of
without his knowledge, much less consent, and that it
deprived him of his legitime. After all, he had given her no
cause for disinheritance, added Jorge in his opposition.
Maria's will. If you were the Judge?
SUGGESTED ANSWER:
As Judge, I shall rule as follows: Jorge's opposition should be
sustained in part and denied in part. Jorge's omission as spouse
of Maria is not preterition of a compulsory heir in the direct
line. Hence, Art. 854 of the Civil Code does not apply, and the
institution of Miguela as heir is valid, but only to the extent of
the free portion of one-half. Jorge is still entitled to one-half
of the estate as his legitime. (Art. 1001, Civil Code)
ALTERNATIVE ANSWERS:
a) As Judge, I shall rule as follows: Jorge's opposition
should be sustained in part and denied in part. This is a case of
ineffective disinheritance under Art, 918 of the Civil Code,
because the omission of the compulsory heir Jorge by Maria
was intentional. Consequently, the institution of Miguela as heir
is void only insofar as the legitime of Jorge is prejudiced.
Accordingly, Jorge is entitled to his legitime of one-half of the
estate, and Miguela gets the other half.
b) As Judge, I shall rule as follows: Jorge's opposition
should be sustained. This is a case of preterition under Article
854 Civil Code, the result of the omission of Jorge as
compulsory heir having the same right equivalent to a legitimate
child "in the direct line" is that total intestacy will arise, and
Jorge will inherit the entire estate.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
c) As Judge, I shall rule as follows: the opposition
should be denied since it is predicated upon causes not
recognized by law as grounds for disallowance of a wll, to wit:
1 that the will was made without his knowledge;
2 that the will was made without his consent; and
3 that it has the effect of depriving him of his
legitime, which is a ground that goes into the
intrinsic validity of the will and need not be
resolved during the probate proceedings.
However, the opposition may be entertained
for, the purpose of securing to the husband his
right to the legitime on the theory that the will
constitutes an ineffective disinheritance under
Art. 918 of the Civil Code,
d) As Judge, I shall rule as follows: Jorge is entitled to
receive his legitime from the estate of his wife. He was not
disinherited in the will even assuming that he gave ground for
disinheritance, hence, he is still entitled to his legitime. Jorge,
however, cannot receive anything from the free portion. He
cannot claim preterition as he is not a compulsory heir in the
direct line. There being no preterition, the institution of the
sister was valid and the only right of Jorge is to claim his
legitime.
Disinheritance; Ineffective (1999)
Mr. Palma, widower, has three daughters D, D-l and D-2. He
executes a Will disinheriting D because she married a man he
did not like, and instituting daughters D-1 and D-2 as his heirs
to his entire estate of P 1,000,000.00, Upon Mr, Palma's death,
how should his estate be divided? Explain. (5%)
SUGGESTED ANSWER:
This is a case of ineffective disinheritance because marrying a
man that the father did not approve of is not a ground for
disinheriting D. Therefore, the institution of D-l and D-2 shall
be annulled insofar as it prejudices the legitime of D, and the
institution of D-l and D-2 shall only apply on the free portion
in the amount of P500,000.00. Therefore, D, D-l and D-2 will
get their legitimes of P500.000.00 divided into three equal parts
and D-l and D-2 will get a reduced testamentary disposition of
P250,000.00 each. Hence, the shares will be:
D P166,666.66
D-l P166,666.66 + P250.000.00
D-2 P166,666.66 + P250,000.00
Disinheritance; Ineffective; Preterition (2000)
In his last will and testament, Lamberto 1) disinherits his
daughter Wilma because "she is disrespectful towards me and
raises her voice talking to me", 2) omits entirely his spouse
Elvira, 3) leaves a legacy of P100,000.00 to his mistress Rosa
and P50,000.00 to his driver Ernie and 4) institutes his son
Baldo as his sole heir. How will you distribute his estate of
P1,000,000.00? (5%)
SUGGESTED ANSWER:
The disinheritance of Wilma was ineffective because the
ground relied upon by the testator does not constitute
maltreatment under Article 919(6) of the New Civil Code.
Hence, the testamentary provisions in the will shall be annulled
but only to the extent that her legitime was impaired.
The total omission of Elvira does not constitute preterition
because she is not a compulsory heir in the direct line. Only
compulsory heirs in the direct line may be the subject of
preterition. Not having been preterited, she will be entitled
only to her legitime.
The legacy in favor of Rosa is void under Article 1028 for being
in consideration of her adulterous relation with the testator. She
is, therefore, disqualified to receive the legacy of 100,000 pesos.
The legacy of 50,000 pesos in favor of Ernie is not inofficious
not having exceeded the free portion. Hence, he shall be
entitled to receive it.
The institution of Baldo, which applies only to the free portion,
shall be respected. In sum, the estate of Lamberto will be
distributed as follows:
Baldo-----------------450,000
Wilma---------------250,000
Elvira-----------------250,000
Ernie-----------------50,000
1,000,000
ALTERNATIVE ANSWER:
The disinheritance of Wilma was effective because disrespect of,
and raising of voice to, her father constitute maltreatment under
Article 919(6) of the New Civil Code. She is, therefore, not entitled to
inherit anything. Her inheritance will go to the other legal heirs. The
total omission of Elvira is not preterition because she is not a
compulsory heir in the direct line. She will receive only her legitime.
The legacy in favor of Rosa is void under Article
1028 for being in consideration of her adulterous relation with
the testator. She is, therefore, disqualified to receive the legacy.
Ernie will receive the legacy in his favor because it is not inofficious.
The institution of Baldo, which applies only to the free portion, will be
respected. In sum, the estate of Lamberto shall be distributed as
follows:
Heir Legitime Legacy Institution TOTAL
Baldo 500,000 200.000 700,000 Elvira 250,000 250,000 Ernie 50,000
50,000 TOTAL 750,000 50,000 200,000 1,000,000
ANOTHER ALTERNATIVE ANSWER:
Same answer as the first Alternative Answer except as to
distribution. Justice Jurado solved this problem differently.
In his opinion, the legitime of the heir who was disinherited
is distributed among the other compulsory heirs in
proportion to their respective legitimes, while his share in the
intestate portion. If any, is distributed among the other legal
heirs by accretion under Article 1018 of the NCC in
proportion to their respective intestate shares. In sum the
distribution shall be as follows:
Heir Distribution
Legitime
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
of Legacy TOTAL
Wilmas Institution
Legitime
Bald
o 250,0000 125,000 200,000 575,000
Wil
ma (250.000)
Elvi 250,000 125.000 375.000
Heirs; Intestate Heirs; Reserva Troncal (1995) ra
Isidro and Irma, Filipinos, both 18 years of age, were
passengers of Flight No. 317 of Oriental Airlines. The plane
they boarded was of Philippine registry. While en route from
Manila to Greece some passengers hijacked the plane, held
the chief pilot hostage at the cockpit and ordered him to fly
instead to Libya. During the hijacking Isidro suffered a heart
attack and was on the verge of death. Since Irma was already
eight months pregnant by Isidro, she pleaded to the hijackers
to allow the assistant pilot to solemnize her marriage with
Isidro. Soon after the marriage, Isidro expired. As the plane
landed in Libya Irma gave birth. However, the baby died a
few minutes after complete delivery. Back in the Philippines
Irma Immediately filed a claim for inheritance. The parents
of Isidro opposed her claim contending that the marriage
between her and Isidro was void ab initio on the following
grounds: (a) they had not given their consent to the marriage
of their son; (b) there was no marriage license; (c) the
solemnizing officer had no authority to perform the
marriage; and, (d) the solemnizing officer did not file an
affidavit of marriage with the proper civil registrar.

2. Does Irma have any successional rights at all? Discuss fully.

SUGGESTED ANSWER:
2. Irma succeeded to the estate of Isidro as his surviving
spouse to the estate of her legitimate child. When Isidro
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
died, he was succeeded by his surviving wife Irma, and his (b)
legitimate unborn child. They divided the estate equally
between them, the child excluding the parents of Isidro. An
unborn child is considered born for all purposes favorable to
it provided it is born later. The child was considered born
because, having an intra-uterine life of more than seven
months, it lived for a few minutes after its complete delivery.
It was legitimate because it was born within the valid marriage
of the parents. Succession is favorable to it. When the child
died, Irma inherited the share of the child. However, the share
of the child in the hands of Irma is subject to reserva troncal
for the benefit of the relatives of the child within the third
degree of consanguinity and who belong to the line of
Isidro.
ALTERNATIVE ANSWER:
If the marriage is void. Irma has no successional rights with
respect to Isidro but she would have successional rights with
respect to the child.
Heirs; Intestate Heirs; Shares (2003)
Luis was survived by two legitimate children, two illegitimate
children, his parents, and two brothers. He left an estate of P1
million. Luis died intestate. Who are his intestate heirs, and how
much is the share of each in his estate?
SUGGESTED ANSWER:
The intestate heirs are the two (2) legitimate children and the
two (2) illegitimate children. In intestacy the estate of the
decedent is divided among the legitimate and illegitimate
children such that the share of each illegitimate child is one -
half the share of each legitimate child.
Their share are : For each legitimate child P333,333.33
For each illegitimate child
P166,666.66
(Article 983, New Civil Code; Article 176, Family Code)
Intestate Succession (1992)
F had three (3) legitimate children: A, B, and C. B has one
(1) legitimate child X. C has two (2) legitimate children: Y
and Z. F and A rode together in a car and perished together
at the same time in a vehicular accident, F and A died, each
of them leaving substantial estates in intestacy.
a) Who are the intestate heirs of F? What are their
respective fractional shares?
b) Who are the intestate heirs of A? What are their
respective fractional shares?
c) If B and C both predeceased F, who are Fs intestate
heirs? What are their respective fractional shares? Do
they inherit in their own right or by representation?
Explain your answer.
d) If B and C both repudiated their shares in the estate of F
who are F's intestate heirs? What are their respective
fractional shares? Do they inherit in their own right or by
representation? Explain your answer, SUGGESTED
ANSWER:
(a) B=
1/2
B = 1/2 Z = 1/4 by representation of C C= 1/2 Article
982 of the Civil Code provides that grandchildren inherit by
right of representation.
( c) X = 1/2 by representation of B C=l/2 Y = 1/4 by
representation of C
(d) X - 1/3 in his own right Y- 1/3 in his own right 2 - 1/3 in
his own right
Article 977 of the Civil Code provides that heirs who repudiate
their share cannot be represented.
Intestate Succession (1997)
"T" died intestate on 1 September 1997.He was survived by M
(his mother), W (his widow), A and B (his legitimate children),
C (his grandson, being the legitimate son of B), D (his other
grandson, being the son of E who was a legitimate son of, and
who predeceased, "T"), and F (his grandson, being the son of
G, a legitimate son who repudiated the inheritance from "T").
His distributable net estate is P120.000.00. How should this
amount be shared in intestacy among the surviving heirs?
SUGGESTED ANSWER:
The legal heirs are A, B, D, and W. C is excluded by B who is
still alive. D inherits in representation of E who predeceased.
F is excluded because of the repudiation of G, the
predecessor. M is excluded by the legitimate children of T.
The answer may be premised on two theories: the Theory of
Exclusion and the Theory of Concurrence.
Under the Theory of Exclusion the legitimes of the heirs are
accorded them and the free portion will be given exclusively
to the legitimate descendants. Hence under the Exclusion
Theory: A will get P20.000.00. and P 13.333.33 (1/3 of the free
portion) B will get P 20,000.00. and P13. 333.33 (1/3 of the free
portion) D will get P20.000.00. and P13. 333.33 (1/3 of the free
portion)
W, the widow is limited to the legitime of P20.000.00 Under
the Theory of Concurrence. In addition to their legitimes,
the heirs of A, B, D and W will be given equal shares in the
free portions:
A: P20.000.00 plus P10.000.00 (1 /4 of the free portion)
B: P20,000.00 plus P10.000.00 (l/4 of the free portlon)
C: P20,000.00 plus P10.000.00 (1/4 of the free portion)
W: P20,000.00 plus P10,000.00 (l/4 of the free portion) Alternative
Answer: Shares in Intestacy T - decedent Estate: P120.000.00
Survived by: M - Mother............................None W -
Widow.............................P 30,000.00 A - Son.................................P 30,000.00 B
- Son.................................P30.000.00 C - Grandson (son of B).............None D -
Grandson (son of E who predeceased T)................P 30,000.00 F - Grandson
(son of G who repudiated the Inheritance from"T").......................None
Explanation:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
a) The mother (M) cannot inherit from T because
under Art. 985 the ascendants shall inherit in default of
legitimate children and descendants of the deceased.
b) The widow's share is P30.000.00 because under Art,
996 it states that if the widow or widower and legitimate
children or descendants are left, the surviving
spouse has in the succession the same share as that of
each of the children, c) C has no share because his father is
still alive hence succession by representation shall not apply
(Art. 975).
d) D inherits P30.000 which is the share of his father E
who predeceased T by virtue of Art. 981 on the right of
representation.
e) F has no share because his father G repudiated the
inheritance. Under Article 977 heirs who repudiate their
share may not be represented.
Intestate Succession (1998)
Enrique died, leaving a net hereditary estate of P1.2 million.
He is survived by his widow, three legitimate children, two
legitimate grandchildren sired by a legitimate child who
predeceased him, and two recognized illegitimate children.
Distribute the estate in intestacy. [5%]
SUGGESTED ANSWER:
Under the theory of Concurrence, the shares are as follows:
A (legitimate child) = P200,000 B (legitimate child) =
P200,000 C (legitimate child) = P200,000 D (legitimate child)
= O (predeceased] E (legitimate child of D) = P100,000 - by right
of representation F (legitimate child of D) = P100,000 - by right of
representation G (illegitimate child) = P100,000 - 1/2 share of the
legitimate child H (illegitimate child) = P100,000 - 1/2 share of the
legitimate child W (Widow) = P200.000 - same share as legitimate
child
ANOTHER ANSWER:
Under the theory of Exclusion the free portion (P300,000) is
distributed only among the legitimate children and is given to
them in addition to their legitime. All other Intestate heirs are
entitled only to their respective legitimes. The distribution is as
follows:
Legitime Free Portion Total
A [legitimate child) P150.000 + P 75,000 - P225.000 B {legitimate child)
P150.000 + P150.000 - P225.000 C (legitimate child) P150.000 + P
75.000 - P225.000 D (legitimate child) 0 0 0 E
(legitimate child of D) P 75,000 + P35.500 - P112,500 F
(legitimate child of D) P 75.000 + P 37.500 - P112,500 G
(illegitimate child) P 75.000 0 -P 75,500 H (illegitimate child)
P 75.000 0 - P 75,500 W (Widow) P150,000 0 -P150.000
Intestate Succession (1998)
Tessie died survived by her husband Mario, and two nieces,
Michelle and Jorelle, who are the legitimate children of an
elder sister who had predeceased her. The only property she
left behind was a house and lot worth two million pesos,
which Tessie and her husband had acquired with the use of
Mario's savings from his income as a doctor. How much of
the property or its value, if any, may Michelle and Jorelle claim
as their hereditary shares? [5%]
SUGGESTED ANSWER:
Article 1001 of the Civil Code provides, "Should brothers and sisters
or their children survive with the widow or widower, the latter shall
be entitled to one-half of the inheritance and the brothers and sisters
or their children to the other half." Tessie's gross estate consists of a
house and lot acquired during her marriage, making it part of the
community property. Thus, one-half of the said property would have
to
be set aside as Mario's conjugal share from the community
property. The other half, amounting to one million pesos, is her
conjugal share (net estate), and should be distributed to her
intestate heirs. Applying the above provision of law, Michelle and
Jorelle, Tessie's nieces, are entitled to one-half of her conjugal
share worth one million pesos, or 500,000 pesos, while the other
one-half amounting to P500,000 will go to Mario, Tessie's surviving
spouse. Michelle and Jorelle are then entitled to P250,000 pesos
each as their hereditary share.
Intestate Succession (1999)
Mr. and Mrs. Cruz, who are childless, met with a serious motor
vehicle accident with Mr. Cruz at the wheel and Mrs. Cruz
seated beside him, resulting in the instant death of Mr. Cruz.
Mrs. Cruz was still alive when help came but she also died on
the way to the hospital. The couple acquired properties worth
One Million (P1,000,000.00) Pesos during their marriage,
which are being claimed by the parents of both spouses in equal
shares. Is the claim of both sets of
parents valid and why? (3%) SUGGESTED
ANSWER:
(a) No, the claim of both parents is not valid. When Mr. Cruz
died, he was succeeded by his wife and his parents as his
intestate heirs who will share his estate equally. His estate was
0.5 Million pesos which is his half share in the absolute
community amounting to 1 Million Pesos. His wife, will,
therefore, inherit O.25 Million Pesos and his parents will inherit
0.25 Million Pesos.
When Mrs. Cruz died, she was succeeded by her parents as her
intestate heirs. They will inherit all of her estate consisting of
her 0.5 Million half share in the absolute community and her
0.25 Million inheritance from her husband, or a total of 0.750
Million Pesos.
In sum, the parents of Mr. Cruz will inherit 250,000 Pesos while
the parents of Mrs. Cruz will inherit 750,000 Pesos.
Intestate Succession (2000)
Eugenio died without issue, leaving several parcels of land in
Bataan. He was survived by Antonio, his legitimate brother;
Martina, the only daughter of his predeceased sister Mercedes;
and five legitimate children of Joaquin, another predeceased
brother. Shortly after Eugenio's death, Antonio also died,
leaving three legitimate children. Subsequently, Martina, the
children of Joaquin and the children of Antonio executed an
extrajudicial settlement of the estate of Eugenio, dividing it
among themselves. The succeeding year, a petition to annul the
extrajudicial settlement was filed by Antero, an illegitimate son
of Antonio, who claims he is entitled to share in the estate of
Eugenio. The defendants filed a motion to dismiss on the
ground that Antero is barred by Article 992 of the Civil Code
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
from inheriting from the legitimate brother of his father. How
will you resolve the motion? (5%)
SUGGESTED ANSWER:
The motion to dismiss should be granted. Article 992 does not
apply. Antero is not claiming any inheritance from Eugenio. He
is claiming his share in the inheritance of his father consisting
Eugenio (Dela Merced v. Dela Merced, Gr No. 126707, 25
of his father's share in the inheritance of February 1999).
ALTERNATIVE ANSWER:
It depends. If Antero was not acknowledged by Antonio, the
motion to dismiss should be granted because Antero is not a
legal heir of Antonio. If Antero was acknowledged, the motion
should be denied because Article 992 is not applicable. This is
because Antero is claiming his inheritance from his illegitimate
father, not from Eugenio.
Intestate Succession; Reserva Troncal (1999)
Mr. Luna died, leaving an estate of Ten Million (P1
0,000,000.00) Pesos. His widow gave birth to a child four
months after Mr, Luna's death, but the child died five hours
after birth. Two days after the child's death, the widow of Mr.
Luna also died because she had suffered from difficult
childbirth. The estate of Mr. Luna is now being claimed by his
parents, and the parents of his widow. Who is entitled to Mr.
Luna'a estate and why? (5%) SUGGESTED
ANSWER:
Half of the estate of Mr. Luna will go to the parents of Mrs.
Luna as their inheritance from Mrs. Luna, while the other half
will be inherited by the parents of Mr. Luna as the reservatarios
of the reserved property inherited by Mrs. Luna from her child.
When Mr. Luna died, his heirs were his wife and the unborn
child. The unborn child inherited because the inheritance was
favorable to it and it was born alive later though it lived only
for five hours. Mrs. Luna inherited half of the 10 Million estate
while the unborn child inherited the other half. When the child
died, it was survived by its mother, Mrs. Luna. As the only heir,
Mrs. Luna inherited, by operation of law, the estate of the child
consisting of its 5 Million inheritance from Mr. Luna. In the
hands of Mrs. Luna, what she inherited from her child was
subject to reserva troncal for the benefit of the relatives of the
child within the third degree of consanguinity and who belong
to the family of Mr. Luna, the line where the property came
from.
When Mrs. Luna died, she was survived by her parents as her
only heirs. Her parents will inherit her estate consisting of the
5 Million she inherited from Mr. Luna. The other 5 Million she
inherited from her child will be delivered to the parents of Mr.
Luna as beneficiaries of the reserved property.
In sum, 5 Million Pesos of Mr. Luna's estate will go to the
parents of Mrs. Luna, while the other 5 Million Pesos will go to
the parents of Mr. Luna as reservatarios.
ALTERNATIVE ANSWER:
If the child had an intra-uterine life of not less than 7 months, it
inherited from the father. In which case, the estate of 10M will be
divided equally between the child and the widow as legal heirs.
Upon the death of the child, its share of 5M shall go by operation of
law to the mother, which shall be subject to reserva troncal. Under
Art. 891, the reserva is in favor of relatives belonging to the paternal
line and who are within 3 degrees from the child. The parents of Mr,
Luna are entitled to the reserved portion which is 5M as they are 2
degrees related from child. The
from her by her parents.
5M inherited by Mrs. Luna from Mr. Luna will be inherited
However, if the child had intra-uterine life of less than 7
months, half of the estate of Mr. Luna, or 5M, will be
inherited by the widow (Mrs. Luna), while the other half, or
5M, will be inherited by the parents of Mr. Luna. Upon the
death of Mrs. Luna, her estate of 5M will be inherited by her
own parents.
Legitime (1997)
"X", the decedent, was survived by W (his widow). A (his
son), B (a granddaughter, being the daughter of A) and C and
D (the two acknowledged illegitimate children of the
decedent). "X" died this year (1997) leaving a net estate of
P180,000.00. All were willing to succeed, except A who
repudiated the inheritance from his father, and they seek your
legal advice on how much each can expect to receive as their
respective shares in the distribution of the estate. Give your
answer.
SUGGESTED ANSWER:
The heirs are B, W, C and D. A inherits nothing because of
his renunciation. B inherits a legitime of P90.000.00 as the
nearest and only legitimate descendant, inheriting in his own
right not by representation because of A's renunciation. W
gets a legitime equivalent to one-half (1 / 2) that of B
amounting to P45.000. C and D each gets a legitime
equivalent to one-half (1/2) that of B amounting to
P45.000.00 each. But since the total exceeds the entire estate,
their legitimes would have to be reduced corresponding to
P22.500.00 each (Art. 895. CC). The total of all of these
amounts to P180.000.00.
ALTERNATIVE ANSWER:
INTESTATE SUCCESSION
ESTATE: P180,000.00
W- (widow gets 1/2 share) P90.000.00 (Art. 998) A- (son who
repudiated his inheritance) None Art. 977) B - (Granddaughter)
None C - (Acknowledged illegitimate child) P45.000.00 (Art.998) D
- (Acknowledged illegitimate child) P45,000.00 (Art. 998) The
acknowledged illegitimate child gets 1/2 of the share of each
legitimate child.
Legitime; Compulsory Heirs (2003)
Luis was survived by two legitimate children, two illegitimate
children, his parents, and two brothers. He left an estate of P1
million. Who are the compulsory heirs of Luis, how much is
the legitime of each, and how much is the free portion of his
estate, if any?
SUGGESTED ANSWER:
The compulsory heirs are the two legitimate children and the
two illegitimate children. The parents are excluded by the
legitimate children, while the brothers are not compulsory
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
heirs at all. Their respective legitimate are: a) The legitime of
the two (2) legitimate children is one
half (1/2) of the estate (P500,000.00) to be divided
between them equally, or P250,000.00 each. b) The legitimate
of each illegitimate child is one-half (1/2) the
legitime of each legitimate child or
P125,000.00.
c) Since the total legitime of the compulsory heirs is
P750,000.00, the balance of P250,000.00 is the free
portion.
Legitime; Compulsory Heirs vs. Secondary
Compulsory
Heirs (2005)
Emil, the testator, has three legitimate children, Tom, Henry
and Warlito; a wife named Adette; parents named Pepe and
Pilar; an illegitimate child, Ramon; brother, Mark; and a sister,
Nanette. Since his wife Adette is well-off, he wants to leave to
his illegitimate child as much of his estate as he can legally do.
His estate has an aggregate net amount of Pl,200,000.00, and
all the above-named relatives are still living. Emil now comes
to you for advice in making a will. How will you distribute his
estate according to his wishes without violating the law on
testamentary succession? (5%) SUGGESTED
ANSWER:
P600,000.00 legitime to be divided equally between Tom,
Henry and Warlito as the legitimate children. Each will be
entitled to P200,000.00. (Art. 888, Civil Code) P100,000.00 --
share of Ramon the illegitimate child. Equivalent to 1/2 of the
share of each legitimate child. (Art. 176, Family Code)
P200,000.00 Adette the wife. Her share is equivalent to the
share of one legitimate child. (Art. 892, par. 2, Civil Code)
Pepe and Pilar, the parents are only secondary compulsory
heirs and they cannot inherit if the primary compulsory heirs
(legitimate children) are alive. (Art. 887, par. 2, Civil Code)
Brother Mark and sister Nanette are not compulsory heirs
since they are not included in the enumeration under Article
887 of the Civil Code.
The remaining balance of P300,000.00 is the free portion
which can be given to the illegitimate child Ramon as an
instituted heir. (Art. 914, Civil Code) If so given by the
decedent, Ramon would receive a total of P400,000.00.
Preterition (2001)
Because her eldest son Juan had been pestering her for capital
to start a business, Josefa gave him P100,000. Five years later,
Josefa died, leaving a last will and testament in which she
instituted only her four younger children as her sole heirs. At
the time of her death, her only properly left was P900,000.00
in a bank. Juan opposed the will on the ground of preterition.
How should Josefa's estate be divided among her heirs? State
briefly the reason(s) for your answer. (5%)
SUGGESTED ANSWER:
There was no preterition of the oldest son because the
testatrix donated 100,000 pesos to him. This donation is
considered an advance on the son's inheritance. There being
no preterition, the institutions in the will shall be respected
but the legitime of the oldest son has to be completed if he
received less.
After collating the donation of P100.000 to the remaining
property of P900,000, the estate of the testatrix is P1,000,000.
Of this amount, one-half or P500,000, is the
legitime of the legitimate children and it follows that the
legitime of one legitimate child is P100,000. The legitime,
therefore, of the oldest son is P100,000. However, since the
donation given him was P100,000, he has already received in
full his legitime and he will not receive anything anymore
from the decedent. The remaining P900,000, therefore, shall
go to the four younger children by institution in the will, to be
divided equally among them. Each will receive P225,000.
ALTERNATIVE ANSWER:
Assuming that the donation is valid as to form and substance,
Juan cannot invoke preterition because he actually had received
a donation inter vivos from the testatrix (III Tolentino
188,1992 ed.). He would only have a right to a completion of
his legitime under Art. 906 of the Civil Code. The estate should
be divided equally among the five children who will each
receive P225,000.00 because the total hereditary estate, after
collating the donation to Juan (Art. 1061, CC), would be P1
million. In the actual distribution of the net estate, Juan gets
nothing while his siblings will get P225,000.00 each.
Preterition; Compulsory Heir (1999)
(a) Mr, Cruz, widower, has three legitimate children, A, B
and C. He executed a Will instituting as his heirs to his estate
of One Million (P1,000,000.00) Pesos his two children A and
B, and his friend F. Upon his death, how should Mr. Cruz's
estate be divided? Explain. (3%)
( b) In the preceding question, suppose Mr. Cruz instituted his
two children A and B as his heirs in his Will, but gave a legacy
of P 100,000.00 to his friend F. How should the estate of Mr,
Cruz be divided upon his death? Explain, (2%)
SUGGESTED ANSWER:
(a) Assuming that the institution of A, B and F were to
the entire estate, there was preterition of C since C is a
compulsory heir in the direct line. The preterition will result in
the total annulment of the institution of heirs. Therefore, the
institution of A, B and F will be set aside and Mr. Cuz's estate
will be divided, as in intestacy, equally among A, B and C as
follows: A - P333,333.33; B - P333.333.33; and C P333,333.33.
(b) On the same assumption as letter (a), there was
preterition of C. Therefore, the institution of A and B is
annulled but the legacy of P100.000.00 to F shall be respected
for not being inofficious. Therefore, the remainder of
P900.000.00 will be divided equally among A, B and C.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Proceedings; Intestate Proceedings; Jurisdiction
(2004)
In his lifetime, a Pakistani citizen, ADIL, married three times
under Pakistani law. When he died an old widower, he left
behind six children, two sisters, three homes, and an estate
worth at least 30 million pesos in the Philippines. He was born
in Lahore but last resided in Cebu City, where he had a mansion
and where two of his youngest children now live and work.
Two of his oldest children are farmers in Sulu, while the two
middle-aged children are employees in Zamboanga City.
Finding that the deceased left no will, the youngest son wanted
to file intestate proceedings before the Regional Trial Court of
Cebu City. Two other siblings
objected, arguing that it should be in Jolo before a Sharia
court since his lands are in Sulu. But Adils sisters in Pakistan
want the proceedings held in Lahore before a Pakistani court.
Which court has jurisdiction and is the proper venue for the
intestate proceedings? The law of which country shall govern
succession to his estate? (5%)
SUGGESTED ANSWER:
In so far as the properties of the decedent located in the
Philippines are concerned, they are governed by Philippine
law (Article 16, Civil Code). Under Philippine law, the proper
venue for the settlement of the estate is the domicile of the
decedent at the time of his death. Since the decedent last
resided in Cebu City, that is the proper venue for the intestate
settlement of his estate.
However, the successional rights to the estate of ADIL are
governed by Pakistani law, his national law, under Article 16
of the Civil Code.
Succession; Death; Presumptive Legitime (1991)
a) For purposes of succession, when is death deemed to
occur or take place? b) May succession be conferred by
contracts or acts inter
vivos? Illustrate. c) Is there any law which allows the delivery
to compulsory heirs of their presumptive legitimes during
the lifetime of their parents? If so, in what instances?
SUGGESTED ANSWER:
A. Death as a fact is deemed to occur when it actually
takes place. Death is presumed to take place in the
circumstances under Arts. 390-391 of the Civil Code. The
time of death is presumed to be at the expiration of the 10year
period as prescribed by Article 390 and at the moment of
disappearance under Article 391.
B. Under Art. 84 of the Family Code amending Art 130
of the Civil Code, contractual succession is no longer possible
since the law now requires that donations of future property
be governed by the provisions on the testamentary succession
and formalities of wills.
ALTERNATIVE ANSWER:
B. In the case of Coronado vs.CA(l91 SCRA81), it was ruled
that no property passes under a will without its being
probated, but may under Article 1058 of the Civil Code of
1898, be sustained as a partition by an act inter vivos [Many-
Oy vs. CA 144SCRA33).
And in the case of Chavez vs, IAC 1191 SCRA211), it was ruled
that while the law prohibits contracts upon future inheritance,
the partition by the parent, as provided in Art. 1080 is a case
expressly authorized by law. A person has two options in
making a partition of his estate: either by an act inter vivos or
by will. If the partition is by will, it is imperative that such
partition must be executed in accordance with the provisions
of the law on wills; if by an act inter vivos, such partition may
even be oral or written, and need not be in the form of a will,
provided the legitime is not prejudiced.
"Where several sisters execute deeds of sale over their 1 /6
mother, in favor of another sister, with their mother not
undivided share of the paraphernal property of their
only giving her authority thereto but even signing said deeds,
there is a valid partition inter vivos between the mother and
her children which cannot be revoked by the mother. Said
deeds of sale are not contracts entered into with respect to
future inheritance.
"It would be unjust for the mother to revoke the sales to a son
and to execute a simulated sale in favor of a daughter who
already benefited by the partition."
SUGGESTED ANSWER:
C. Yes, under Arts. 51 and 52 of the New Family Code. In
case of legal separation, annulment of marriage, declaration of
nullity of marriage and the automatic termination of a
subsequent marriage by the reappearance of the absent
spouse, the common or community property of the spouses
shall be dissolved and liquidated.
Art, 51. In said partition, the value of the presumptive
legitimes of all common children, computed as of the date of
the final judgment of the trial court, shall be delivered in cash,
property or sound securities, unless the parties, by mutual
agreement, judicially approved, had already provided for such
matters.
The children of their guardian, or the trustee of their property,
may ask for the enforcement of the judgment.
The delivery of the presumptive legitimes herein prescribed
shall in no way prejudice the ultimate successional rights of
the children accruing upon the death of either or both of the
parents; but the value of the properties already received under
the decree of annulment or absolute nullity shall be
considered as advances on their legitime.
Art. 52. The judgment of annulment or of absolute nullity of
the marriage, the partition and distribution of the properties
of the spouses, and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate civil registry and
registries of property; otherwise, the same shall not affect
third persons.
Wills; Codicil; Institution of Heirs; Substitution of
Heirs
(2002)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
By virtue of a Codicil appended to his will, Theodore devised
to Divino a tract of sugar land, with the obligation on the part
of Divino or his heirs to deliver to Betina a specified volume
of sugar per harvest during Betinas lifetime. It is also stated in
the Codicil that in the event the obligation is not fulfilled,
Betina should immediately seize the property from Divino or
latters heirs and turn it over to Theodores compulsory heirs.
Divino failed to fulfill the obligation under the Codicil. Betina
brings suit against Divino for the reversion of the tract of
land. a) Distinguish between modal institution and substation
of heirs. (3%) b) Distinguish between simple and
fideicommissary substitution of heirs. (2%) c) Does Betina
have a cause of action against Divino?
Explain (5%) SUGGESTED
ANSWER:
A. A MODAL INSTITUTION is the institution of an
heir made for a certain purpose or cause (Arts. 871 and 882,
NCC). SUBSTITUTION is the appointment of another heir so
that he may enter into the inheritance in default of the heir
originality instituted. (Art. 857, NCC).
B. In a SIMPLE SUBSTITUTION of heirs, the testator
designates one or more persons to substitute the heirs instituted
in case such heir or heirs should die before him, or should not
wish or should be incapacitated to accept the inheritance. In a
FIDEICOMMISSARY SUBSTITUTION, the testator
institutes a first heir and charges him to preserve and transmit
the whole or part of the inheritance to a second heir. In a simple
substitution, only one heir inherits. In a fideicommissary
substitution, both the first and second heirs inherit. (Art. 859
and 869, NCC)
C. Betina has a cause of action against Divino. This is a
case of a testamentary disposition subject to a mode and the
will itself provides for the consequence if the mode is not
complied with. To enforce the mode, the will itself gives Betina
the right to compel the return of the property to the heirs of
Theodore. (Rabadilla v. Conscoluella, 334 SCRA 522 [2000] GR
113725, 29 June 2000).
Wills; Formalities (1990)
(1) If a will is executed by a testator who is a Filipino
citizen, what law will govern if the will is executed in the
Philippines? What law will govern if the will is executed in
another country? Explain your answers.
(2) If a will is executed by a foreigner, for instance, a
Japanese, residing in the Philippines, what law will govern if
the will is executed in the Philippines? And what law will
govern if the will is executed in Japan, or some other country,
for instance, the U.S.A.? Explain your answers.
SUGGESTED ANSWER:
(1) a. If the testator who is a Filipino citizen executes his will
in the Philippines, Philippine law will govern the formalities.
b. If said Filipino testator executes his will in another country,
the law of the country where he maybe or Philippine law will
govern the formalities. (Article 815, Civil Code}
SUGGESTED ANSWER:
(2) a. If the testator is a foreigner residing in the Philippines
and he executes his will in the Philippines, the law of the
country of which he is a citizen or Philippine law will govern
the formalities.
b. If the testator is a foreigner and executes his will in a
foreign country, the law of his place of residence or the law of
the country of which he is a citizen or the law of the place of
execution, or Philippine law will govern the formalities
(Articles 17. 816. 817. Civil Code).
POSSIBLE ADDITIONAL ANSWERS:
a. In the case of a Filipino citizen, Philippine law shall
govern substantive validity whether he executes his will in the
Philippines or in a foreign country.
b. In the case of a foreigner, his national law shall
govern substantive validity whether he executes his will in the
Philippines or in a foreign country.
Wills; Holographic Wills; Insertions &
Cancellations (1996)
Vanessa died on April 14, 1980, leaving behind a holographic
will which is entirely written, dated and signed in her own
handwriting. However, it contains insertions and cancellations
which are not authenticated by her signature. For this reason,
the probate of Vanessa's will was opposed by her relatives
who stood to inherit by her intestacy. May Vanessa's
holographic will be probated? Explain.
SUGGESTED ANSWER:
Yes, the will as originally written may be probated. The
insertions and alterations were void since they were not
authenticated by the full signature of Vanessa, under Art. 814,
NCC. The original will, however, remains valid because a
holographic will is not invalidated by the unauthenticated
insertions or alterations (Ajero v. CA, 236 SCRA 468].
ALTERNATIVE ANSWER:
It depends. As a rule, a holographic will is not adversely
affected by Insertions or cancellations which were not
authenticated by the full signature of the testator (Ajero v. CA,
236 SCRA 468). However, when the insertion or cancellation
amounts to revocation of the will, Art.814 of the NCC does not
apply but Art. 830. NCC. Art. 830 of the NCC does not require
the testator to authenticate his cancellation for the effectivity of
a revocation effected through such cancellation
(Kalaw v. Relova, 132 SCRA 237). In the Kalaw case, the original
holographic will designated only one heir as the only substantial
provision which was altered by substituting the original heir
with another heir. Hence, if the unauthenticated cancellation
amounted to a revocation of the will, the will may not be
probated because it had already been revoked.
Wills; Holographic Wills; Witnesses (1994)
On his deathbed, Vicente was executing a will. In the room
were Carissa, Carmela, Comelio and Atty. Cimpo, a notary
public. Suddenly, there was a street brawl which caught
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Comelio's attention, prompting him to look out the window.
Cornelio did not see Vicente sign a will. Is the will valid?
SUGGESTED ANSWERS:
a) Yes, The will is valid. The law does not require a
witness to actually see the testator sign the will. It is sufficient
if the witness could have seen the act of signing had he chosen
to do so by casting his eyes to the proper direction.
b) Yes, the will is valid. Applying the "test of position",
although Comelio did not actually see Vicente sign the will,
Cornelio was in the proper position to see Vicente sign if
Cornelio so wished.
Wills; Joint Wills (2000)
Manuel, a Filipino, and his American wife Eleanor, executed a
Joint Will in Boston, Massachusetts when they were residing in
said city. The law of Massachusetts allows the execution of joint
wills. Shortly thereafter, Eleanor died. Can the said Will be
probated in the Philippines for the settlement of her estate?
(3%)
SUGGESTED ANSWER:
Yes, the will may be probated in the Philippines insofar as the
estate of Eleanor is concerned. While the Civil Code prohibits
the execution of Joint wills here and abroad, such prohibition
applies only to Filipinos. Hence, the joint will which is valid
where executed is valid in the Philippines but only with respect
to Eleanor. Under Article 819, it is void with respect to Manuel
whose joint will remains void in the
Philippines despite being valid where executed. ALTERNATIVE
ANSWER:
The will cannot be probated in the Philippines, even though
valid where executed, because it is prohibited under Article 818
of the Civil Code and declared void under Article 819, The
prohibition should apply even to the American wife because
the Joint will is offensive to public policy. Moreover, it is a
single juridical act which cannot be valid as to one testator and
void as to the other.
Wills; Probate; Intrinsic Validity (1990)
H died leaving a last will and testament wherein it is stated that
he was legally married to W by whom he had two legitimate
children A and B. H devised to his said forced heirs the entire
estate except the free portion which he gave to X who was
living with him at the time of his death.
In said will he explained that he had been estranged from his
wife W for more than 20 years and he has been living with X
as man and wife since his separation from his legitimate family.
In the probate proceedings, X asked for the issuance of letters
testamentary in accordance with the will wherein she is named
sole executor. This was opposed by W and her children.
(a) Should the will be admitted in said probate
proceedings?
(b) Is the said devise to X valid?
(c) Was it proper for the trial court to consider the
intrinsic validity of the provisions of said will? Explain your
answers,
SUGGESTED ANSWER:
(a) Yes, the will may be probated if executed according
to the formalities prescribed by law.
(b) The institution giving X the free portion is not valid,
because the prohibitions under Art. 739 of the Civil Code on
donations also apply to testamentary dispositions (Article
1028, Civil Code), Among donations which are considered
void are those made between persons who were guilty of
adultery or concubinage at the time of the donation.
(c) As a general rule, the will should be admitted in
probate proceedings if all the necessary requirements for its
extrinsic validity have been met and the court should not
consider the intrinsic validity of the provisions of said will.
However, the exception arises when the will in effect contains
only one testamentary disposition. In effect, the only
testamentary disposition under the will is the giving of the free
portion to X, since legitimes are provided by law. Hence, the
trial court may consider the intrinsic validity of the provisions
of said will.
(Nuguid v. Nuguid, etal.. No. L23445, June 23, 1966, 17 SCRA;
Nepomuceno v. CA, L-62952, 9 October 1985. 139 SCRA 206).
Wills; Probate; Notarial and Holographic Wills
(1997)
Johnny, with no known living relatives, executed a notarial will
giving all his estate to his sweetheart. One day, he had a
serious altercation with his sweetheart. A few days later, he
was introduced to a charming lady who later became a dear
friend. Soon after, he executed a holographic will expressly
revoking the notarial will and so designating his new friend as
sole heir. One day when he was clearing up his desk, Johnny
mistakenly burned, along with other papers, the only copy of
his holographic will. His business associate, Eduardo knew
well the contents of the will which was shown to him by
Johnny the day it was executed. A few days after the burning
incident, Johnny died. Both wills were sought to be probated
in two separate petitions. Will either or both petitions
prosper?
SUGGESTED ANSWER:
The probate of the notarial will will prosper. The holographic
will cannot be admitted to probate because a holographic will
can only be probated upon evidence of the will itself unless
there is a photographic copy. But since the holographic will
was lost and there was no other copy, it cannot be probated
and therefore the notarial will will be admitted to probate
because there is no revoking will.
ADDITIONAL ANSWERS:
1. In the case of Gan vs. Yap (104 Phil 509), the execution
and the contents of a lost or destroyed holographic will
may not be proved by the bare testimony of witnesses
who have seen or read such will. The will itself must be
presented otherwise it shall produce no effect. The law
regards the document itself as material proof of
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
authenticity. Moreover, in order that a will may be (1) Was Don's testamentary disposition of his estate in
revoked by a subsequent will, it is necessary that the latter
will be valid and executed with the formalities required
for the making of a will. The latter should possess all the
requisites of a valid will whether it be ordinary or a
holographic will, and should be probated in order that the
revocatory clause thereof may produce effect. In the case
at bar, since the holographic will itself cannot be
presented, it cannot therefore be probated. Since it
cannot be probated, it cannot revoke the notarial will
previously written by the decedent.
2. On the basis of the Rules of Court, Rule 76, Sec. 6,
provides that no will shall be proved as a lost or
destroyed will unless its provisions are clearly and
distinctly proved by at least two (2) credible witnesses.
Hence, if we abide strictly by the two-witness rule to
prove a lost or destroyed will, the holographic will which
Johnny allegedly mistakenly burned, cannot be probated,
since there is only one witness, Eduardo, who can be
called to testify as to the existence of the will. If the
holographic will, which purportedly, revoked the earlier
notarial will cannot be proved because of the absence of
the required witness, then the petition for the probate of
the notarial will should prosper.
Wills; Revocation of Wills; Dependent Relative
Revocation
(2003)
Mr. Reyes executed a will completely valid as to form. A week
later, however, he executed another will which expressly
revoked his first will, which he tore his first will to pieces.
Upon the death of Mr. Reyes, his second will was presented
for probate by his heirs, but it was denied probate
due to formal defects. Assuming that a copy of the first will
is available, may it now be admitted to probate and given effect?
Why?
SUGGESTED ANSWER:
Yes, the first will may be admitted to probate and given effect.
When the testator tore first will, he was under the mistaken
belief that the second will was perfectly valid and he would not
have destroyed the first will had he known that the second will
is not valid. The revocation by destruction therefore is
dependent on the validity of the second will. Since it turned out
that the second will was invalid, the tearing of the first will did
not produce the effect of revocation. This is known as the
doctrine of dependent relative revocation
(Molo v. Molo, 90 Phil 37.)
ALTERNATIVE ANSWERS:
No, the first will cannot be admitted to probate. While it is true
that the first will was successfully revoked by the second will
because the second will was later denied probate, the first will was,
nevertheless, revoked when the testator destroyed it after executing
the second invalid will.
(Diaz v. De Leon, 43 Phil 413 [1922]).
Wills; Testamentary Disposition (2006)
Don died after executing a Last Will and Testament leaving his
estate valued at P12 Million to his common-law wife Roshelle.
He is survived by his brother Ronie and his half-sister Michelle.
accordance with the law on succession? Whether you agree
or not, explain your answer. Explain.
SUGGESTED ANSWER: Yes, Don's testamentary disposition of
his estate is in accordance with the law on succession. Don has
no compulsory heirs not having ascendants, descendants nor a
spouse [Art. 887, New Civil Code]. Brothers and sisters are not
compulsory heirs. Thus, he can bequeath his entire estate to
anyone who is not otherwise incapacitated to inherit from him.
A common-law wife is not incapacitated under the law, as Don
is not married to anyone.
(2) If Don failed to execute a will during his lifetime, as his
lawyer, how will you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: After paying the legal obligations of the
estate, I will give Ronie, as full-blood brother of Don, 2/3 of
the net estate, twice the share of Michelle, the half-sister who
shall receive 1/3. Roshelle will not receive anything as she is
not a legal heir [Art. 1006 New Civil Code].
(3) Assuming he died intestate survived by his brother Ronie, his
half-sister Michelle, and his legitimate son Jayson, how will
you distribute his estate? Explain. (2.5%)
SUGGESTED ANSWER: Jayson will be entitled to the entire
P12 Million as the brother and sister will be excluded by a
legitimate son of the decedent. This follows the principle of
proximity, where "the nearer excludes the farther."
(4) Assuming further he died intestate, survived by his father
Juan, his brother Ronie, his half-sister Michelle, and his
legitimate son Jayson, how will you distribute his estate?
excluded by a legitimate son of the decedent [Art. 887, New
Explain. (2.5%)
SUGGESTED ANSWER: Jayson will still be entitled to the
entire P12 Million as the father, brother and sister will be
Civil Code]. This follows the principle that the descendants
exclude the ascendants from inheritance.
Wills; Testamentary Intent (1996)
Alfonso, a bachelor without any descendant or ascendant,
wrote a last will and testament in which he devised." all the
properties of which I may be possessed at the time of my
death" to his favorite brother Manuel. At the time he wrote
the will, he owned only one parcel of land. But by the time he
died, he owned twenty parcels of land. His other brothers and
sisters insist that his will should pass only the parcel of land he
owned at the time it was written, and did not cover his
properties acquired, which should be by intestate succession.
Manuel claims otherwise. Who is correct? Explain.
SUGGESTED ANSWER:
Manuel is correct because under Art. 793, NCC, property
acquired after the making of a will shall only pass thereby, as if
the testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his
intention. Since Alfonso's intention to devise all properties he
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
owned at the time of his death expressly appears on the will,
then all the 20 parcels of land are included in the devise.

DONATION
Donation vs. Sale (2003)
a) May a person sell something that does not belong to
him? Explain. b) May a person donate something that does
not belong to him? Explain. 5% SUGGESTED ANSWER:
(a) Yes, a person may sell something which does not
belong to him. For the sale to be valid, the law does not
require the seller to be the owner of the property at the time
of the sale. (Article 1434, NCC). If the seller cannot transfer
ownership over the thing sold at the time of delivery because
he was not the owner thereof, he shall be liable for breach of
contact.

(b) As a general rule, a person cannot donate something

which he cannot dispose of at the time of the donation
(Article 751, New Civil Code).

Donations; Condition; Capacity to Sue (1996)

Sometime in 1955, Tomas donated a parcel of land to his
stepdaughter Irene, subject to the condition that she may not
sell, transfer or cede the same for twenty years. Shortly
thereafter, he died. In 1965, because she needed money for
medical expenses, Irene sold the land to Conrado. The
following year, Irene died, leaving as her sole heir a son by the
name of Armando. When Armando learned that the land
which he expected to inherit had been sold by Irene to
Conrado, he filed an action against the latter for annulment of
the sale, on the ground that it violated the restriction imposed
by Tomas. Conrado filed a motion to dismiss, on the ground
that Armando did not have the legal capacity to sue. If you
were the Judge, how will you rule on this motion to dismiss?
Explain.
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
SUGGESTED ANSWER:
As judge, I will grant the motion to dismiss. Armando has no
personality to bring the action for annulment of the sale to
Conrado. Only an aggrieved party to the contract may bring
the action for annulment thereof (Art. 1397. NCC). While
Armando is heir and successor-in-interest of his mother (Art.
1311, NCC), he [standing in place of his mother) has no
personality to annul the contract. Both are not aggrieved
parties on account of their own violation of the condition of,
or restriction on, their ownership imposed by the donation.
Only the donor or his heirs would have the personality to bring
an action to revoke a donation for violation of a condition
thereof or a restriction thereon. (Garrido u. CA, 236 SCRA 450).
Consequently, while the donor or his heirs were not parties to
the sale, they have the right to annul the contract of sale
because their rights are prejudiced by one of the contracting
parties thereof [DBP v. CA, 96 SCRA 342; Teves vs. PHHC. 23
SCRA 114]. Since Armando is neither the donor nor heir of the
donor, he has no personality to bring the action for annulment.
ALTERNATIVE ANSWER:
As judge, I will grant the motion to dismiss. Compliance with
a condition imposed by a donor gives rise to an action to
revoke the donation under Art. 764, NCC. However, the right
of action belongs to the donor. Is transmissible to his heirs,
and may be exercised against the donee's heirs. Since Armando
is an heir of the donee, not of the donor, he has no legal
capacity to sue for revocation of the donation. Although he is
not seeking such revocation but an annulment of the sale
which his mother, the donee, had executed in violation of the
condition imposed by the donor, an action for annulment of a
contract may be brought only by those who are principally or
subsidiarily obliged thereby (Art. 1397, NCC). As an exception
to the rule, it has been held that a person not so obliged may
nevertheless ask for annulment if he is prejudiced in his rights
regarding one of the contracting parties (DBP us. CA. 96 SCRA
342 and other cases) and can show the detriment which would
result to him from the contract in which he had no
intervention, (Teves vs. PHHC, 23 SCRA 1141).
Such detriment or prejudice cannot be shown by Armando. As
a forced heir, Armando's interest in the property was, at best,
a mere expectancy. The sale of the land by his mother did not
impair any vested right. The fact remains that the premature
sale made by his mother (premature because only half of the
period of the ban had elapsed) was not voidable at all, none of
the vices of consent under Art. 139 of the NCC being present.
Hence, the motion to dismiss should be granted.
Donations; Conditions; Revocation (1991)
Spouses Michael and Linda donated a 3-hectare residential land
to the City of Baguio on the condition that the city government
would build thereon a public park with a boxing arena, the
construction of which shall commence within six (6) months
from the date the parties ratify the donation. The donee
accepted the donation and the title to the property was
transferred in its name. Five years elapsed but the public park
with the boxing arena was never started. Considering the
failure of the donee to comply with the condition of the
donation, the donor-spouses sold the
property to Ferdinand who then sued to recover the land from
the city government. Will the suit prosper?
SUGGESTED ANSWER:
Ferdinand has no right to recover the land. It is true that the
donation was revocable because of breach of the conditions.
But until and unless the donation was revoked, it remained
valid. Hence, Spouses Michael and Linda had no right to sell the
land to Ferdinand. One cannot give what he does not have.
What the donors should have done first was to have the
donation annulled or revoked. And after that was done, they
could validly have disposed of the land in favor of Ferdinand.
ALTERNATIVE ANSWER:
A. Until the contract of donation has been resolved or
rescinded under Article 1191 of the Civil Code or revoked
under Art. 764 of the Civil Code, the donation stands effective
and valid. Accordingly, the sale made by the donor to
Ferdinand cannot be said to have conveyed title to Ferdinand,
who, thereby, has no cause of action for recovery of the land
acting for and in his behalf.
B. The donation is onerous, And being onerous, what
applies is the law on contracts, and not the law on donation
(De Luna us. Abrigo, 81 SCRA 150). Accordingly, the
prescriptive period for the filing of such an action would be the
ordinary prescriptive period for contacts which may either be
six or ten depending upon whether it is verbal or written. The
filing of the case five years later is within the prescriptive period
and, therefore, the action can prosper, Alternative Answer:
The law on donation lays down a special prescriptive period in
the case of breach of condition, which is four years from non-
compliance thereof (Article 764 Civil Code). Since the action
has prescribed, the suit will not prosper,
Donations; Effect; illegal & immoral conditions
(1997)
Are the effects of illegal and immoral conditions on simple
donations the same as those effects that would follow when
such conditions are imposed on donations con causa onerosa?
SUGGESTED ANSWER:
No, they don't have the same effect. Illegal or impossible
conditions in simple and remuneratory donations shall be
considered as not imposed. Hence the donation is valid. The
donation will be considered as simple or pure. The condition
or mode is merely an accessory disposition, and its nullity does
not affect the donation, unless it clearly appears that the donor
would not have made the donation without the mode or
condition.
Donations con causa onerosa is governed by law on
obligations and contracts, under which an impossible or Illicit
condition annuls the obligation dependent upon the condition
where the condition is positive and suspensive. If the
impossible or illicit condition is negative, it is simply
considered as not written, and the obligation is converted into
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
a pure and simple one. However, in order that an illegal
condition may annul a contract, the impossibility must exist at
the time of the creation of the obligation; a supervening
impossible condition is considered not written but the donation
remains valid and becomes free from conditions. The condition
or mode being a mere accessory disposition. Its nullity does not
affect the donation unless it clearly appears that the donor
would not have made the donation without the mode or
condition. On the other hand, onerous donation is governed by
the rules on contracts. Under Article 1183, Impossible or illegal
conditions shall annul the obligation which depends upon
them. In these cases, both the obligation and the condition are
void.
Donations; Formalities; Mortis Causa (1990)
B donated to M a parcel of land in 1980. B made the deed of
donation, entitled Donation Inter Vivos, in a public
instrument and M accepted the donation in the same
document. It was provided in the deed that the land donated
shall be immediately delivered to M and that M shall have the
right to enjoy the fruits fully. The deed also provided that B was
reserving the right to dispose of said land during his (Bs)
lifetime, and that M shall not register the deed of donation until
after Bs death. Upon Bs death, W, Bs widow and sole heir,
filed an action for the recovery of the donated land, contending
that the donation made by B is a donation mortis causa and not
a donation inter vivos. Will said action prosper?
Explain your answer.
SUGGESTED ANSWER:
Yes, the action will prosper. The donation is a donation mortis
causa because the reservation is to dispose of all the property
donated and, therefore, the donation is revocable at will.
Accordingly, the donation requires the execution of a valid will,
either notarial or holographic (Arts 755, 728 NCC).
Donations; Formalities; Mortis Causa (1998)
Ernesto donated in a public instrument a parcel of land to
Demetrio, who accepted it in the same document. It is there
declared that the donation shall take effect immediately, with
the donee having the right to take possession of the land and
receive its fruits but not to dispose of the land while Ernesto is
alive as well as for ten years following his death. Moreover,
Ernesto also reserved in the same deed his right to sell the
property should he decide to dispose of it at any time - a right
which he did not exercise at all. After his death, Ernesto's heirs
seasonably brought an action to recover the property, alleging
that the donation was void as it did not comply with the
formalities of a will. Will the suit prosper? [5%]
SUGGESTED ANSWER:
Yes, the suit will prosper as the donation did not comply with
the formalities of a will. In this instance, the fact that the donor
did not intend to transfer ownership or possession of the
donated property to the donee until the donor's death, would
result in a donation mortis causa and in this kind of disposition,
impossibility does not affect the existence of the obligation.
ADDITIONAL ANSWER:
Answers to the BAR as Arranged by Topics
No. In simple or pure donation, only the illegal or
irrevocable, the latter is revocable. In the problem given, all
the formalities of a will should be complied with, otherwise, the
donation is void. In this Instance, donation mortis causa
embodied only in a public instrument without the formalities
of a will could not have transferred ownership of disputed
property to another.
ALTERNATIVE ANSWER:
One of the essential distinctions between a donation inter vivos and
a donation mortis causa is that while the former is
the clauses or conditions mentioned in the deed of donation,
except one, are consistent with the rule of irrevocability and
would have sustained the view that the donation is inter vivos
and therefore valid. The lone exception is the clause which
reserves the donor's right to sell the property at any time
before his death. Such a reservation has been held to render
the donation revocable and, therefore, becomes a donation
mortis causa (Puig vs. Penqflorida, 15 SCRA 276, at p. 286).
That the right was not exercised is immaterial; its reservation
was an implied recognition of the donor's power to nullify the
donation anytime he wished to do so. Consequently, it should
have been embodied in a last will and testament. The suit for
nullity will thus prosper.
Donations; Inter Vivos; Acceptance (1993)
On January 21, 1986, A executed a deed of donation inter
vivos of a parcel of land to Dr. B who had earlier constructed
thereon a building in which researches on the dreaded disease
AIDS were being conducted. The deed, acknowledged before
a notary public, was handed over by A to Dr. B who received
it. A few days after, A flew to Davao City. Unfortunately, the
airplane he was riding crashed on landing killing him. Two
days after the unfortunate accident. Dr. B, upon advice of a
lawyer, executed a deed acknowledged before a notary public
accepting the donation. Is the donation effective? Explain
your answer.
SUGGESTED ANSWER:
No, the donation is not effective. The law requires that the
separate acceptance of the donee of an immovable must be
done in a public document during the lifetime of the donor
(Art. 746 & 749, Civil Code) In this case, B executed the
deed of acceptance before a notary public after the donor
had already died.
Donations; Perfection (1998)
On July 27, 1997, Pedro mailed in Manila a letter to his
brother, Jose, a resident of Ilollo City, offering to donate a
vintage sports car which the latter had long been wanting to
buy from the former. On August 5, 1997, Jose called Pedro
by cellular phone to thank him for his generosity and to
inform him that he was sending by mail his letter of
acceptance. Pedro never received that letter because it was
never mailed. On August 14, 1997, Pedro received a
CIVIL LAW (Year 1990-2006)
telegram from Iloilo informing him that Jose had been killed
in a road accident the day before (August 13, 1997) 1. Is
there a perfected donation? [2%] 2 . Will your answer be the
same if Jose did mail his acceptance letter but it was received
by Pedro in Manila days after Jose's death? [3%]
SUGGESTED ANSWER:
1. None. There is no perfected donation. Under Article
748 of the Civil Code, the donation of a movable may be
made orally or in writing. If the value of the personal property
donated exceeds five thousand pesos, the donation and the
acceptance shall be made in writing. Assuming that the value
of the thing donated, a vintage sports car, exceeds P5,000.00
then the donation and the acceptance must be in writing. In
this instance, the acceptance of Jose was not in writing,
therefore, the donation is void. Upon the other
hand, assuming that the sports car costs less than P5,000.00
then the donation maybe oral, but still, the simultaneous
delivery of the car is needed and there being none, the
donation was never perfected.
SUGGESTED ANSWER:
2. Yes, the answer is the same. If Jose's mail containing
his acceptance of the donation was received by Pedro after
the former's death, then the donation is still void because
under Article 734 of the Civil Code, the donation is perfected
the moment the donor knows of the acceptance by the donee.
The death of Jose before Pedro could receive the acceptance
indicates that the donation was never perfected. Under Article
746 acceptance must be made during the lifetime of both the
donor and the donee.
Donations; Requisites; Immovable Property
Anastacia purchased a house and lot on installments at a
housing project in Quezon City. Subsequently, she was
employed in California and a year later, she executed a deed of
donation, duly authenticated by the Philippine Consulate in Los
Angeles, California, donating the house and lot to her friend
Amanda. The latter brought the deed of donation to the owner
of the project and discovered that Anastacia left unpaid
installments and real estate taxes. Amanda paid these so that
the donation in her favor can be registered in the project
owner's office. Two months later, Anastacia died, leaving her
mother Rosa as her sole heir. Rosa filed an action to annul the
donation on the ground that Amanda did not give her consent
in the deed of donation or in a separate public instrument.
Amanda replied that the donation was an onerous one because
she had to pay unpaid installments and taxes; hence her
acceptance may be implied. Who is correct?
(2%)
SUGGESTED ANSWER:
Rosa is correct because the donation is void. The property
donated was an immovable. For such donation to be valid,
Article 749 of the New Civil Code requires both the donation
and the acceptance to be in a public instrument. There being
no showing that Amanda's acceptance was made in a public
instrument, the donation is void. The contention that the
donation is onerous and, therefore, need not comply with
Article 749 for validity is without merit. The donation is not
onerous because it did not impose on Amanda the obligation
to pay the balance on the purchase price or the arrears in real
estate taxes. Amanda took it upon herself to pay those amounts
voluntarily. For a donation to be onerous, the burden must be
imposed by the donor on the donee. In the problem, there is
no such burden imposed by the donor on the donee. The
donation not being onerous, it must comply with the
formalities of Article 749.
ALTERNATIVE ANSWER:
Neither Rosa nor Amanda is correct. The donation is onerous
only as to the portion of the property corresponding to the
value of the installments and taxes paid by Amanda.
The portion in excess thereof is not onerous. The onerous
portion is governed by the rules on contracts which do not
require the acceptance by the donee to be in any form. The
Code which requires the donation and the acceptance
onerous part, therefore, is valid. The portion which is not
onerous must comply with Article 749 of the New Civil
thereof to be in a public instrument in order to be valid. The
acceptance not being in a public instrument, the part which is
not onerous is void and Rosa may recover it from Amanda.
Donations; Unregistered; Effects; Non-Compliance;
Resolutory Condition (2006)
Spouses Alfredo and Racquel were active members of a
religious congregation. They donated a parcel of land in favor
of that congregation in a duly notarized Deed of Donation,
subject to the condition that the Minister shall construct
thereon a place of worship within 1 year from the acceptance
of the donation. In an affidavit he executed on behalf of the
congregation, the Minister accepted the donation. The Deed
of Donation was not registered with the Registry of Deeds.
However, instead of constructing a place of worship, the Minister
constructed a bungalow on the property he used as his residence.
Disappointed with the Minister, the spouses revoked the donation
and demanded that he vacate the premises immediately. But the
Minister refused to leave, claiming that aside from using the
bungalow as his residence, he is also using it as a place for worship
on special occasions. Under the circumstances, can Alfredo and
Racquel evict the Minister and recover possession of the
property? If you were the couple's counsel, what action you
take to protect the interest of your clients? (5%)
ALTERNATIVE ANSWER:
Yes, Alfredo and Racquel can bring an action for ejectment against
the Minister for recovery of possession of the property evict the
Minister and recover possession of the property. An action for
annulment of the donation, reconveyance and damages should be
filed to protect the interests of my client. The donation is an onerous
donation and therefore shall be governed by the rules on contracts.
Because there was no fulfillment or compliance with the condition
which is resolutory in character, the donation may now be revoked
and all rights which the donee may have acquired under it shall be
deemed lost and extinguished
(Central Philippine University, G.R. No. 112127, July 17,1995).
ALTERNATIVE ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
No, an action for ejectment will not prosper. I would advice
Alfredo and Racquel that the Minister, by constructing a
structure which also serves as a place of worship, has pursued
the objective of the donation. His taking up residence in the
bungalow may be regarded as a casual breach and will not
warrant revocation of the donation. Similarily, therefore, an
action for revocation of the donation will be denied (C. J. Yulo
& Sons, Inc. v. Roman Catholic Bishop, G.R. No. 133705, March
31, 2005; Heirs ofRozendo Sevilla v. De Leon, G.R. No.
149570, March 12, 2004).
that the baby died? Stated otherwise, is the donation valid
and binding? Explain. (5%) SUGGESTED
ANSWER:
The donation is valid and binding, being an act favorable to the
unborn child, but only if the baby had an intra-uterine life of
not less than seven months and provided there was due
acceptance of the donation by the proper person representing
said child. If the child had less than seven months of intra-
uterine life, it is not deemed born since it died less than 24
hours following its delivery, in which ease the donation never
became effective since the donee never became a person, birth
being determinative of personality. ALTERNATIVE ANSWER:
Even if the baby had an intra-uterine life of more than seven
months and the donation was properly accepted, it would be
void for not having conformed with the proper form. In order
to be valid, the donation and acceptance of personal property
exceeding five thousand pesos should be in writing. (Article
748, par. 3)
Donations; with Resolutory Condition (2003)
In 1950, Dr. Alba donated a parcel of land to Central
University on condition that the latter must establish a medical
college on the land to be named after him. In the year 2000,
the heirs of Dr. Alba filed an action to annul the donation and
for the reconveyance of the property donated to them for the
failure, after 50 years, of the University to established on the
property a medical school named after their father. The
University opposed the action on the ground of prescription
and also because it had not used the property for some purpose
other than that stated in the donation. Should the opposition
of the University to the action of Dr. Albas heirs be sustained?
Explain.
SUGGESTED ANSWER:
The donation may be revoked. The non-established of the medical
college on the donated property was a resolutory condition imposed
on the donation by the donor. Although the Deed of Donation did
not fix the time for the established of the medical college, the failure
of the donee to establish the medical college after fifty (50) years from
the making of the donation should be considered as occurrence of the
resolutory condition, and the donation may now be revoked. While
the general rule is that in case the period is not fixed in the agreement
of the parties, the period must be fixed first by the court before the
obligation may be demanded, the period of fifty (50) years was more
than enough time for the donee to comply with the condition. Hence,
in this case, there is no more need for the court to fix the period
because such procedure with the condition. (Central Philippine
University v. CA. 246 SCRA 511).
Donations; Validity; Effectivity; for Unborn Child
(1999)
Elated that her sister who had been married for five years
was pregnant for the first time, Alma donated P100,000.00
to the unborn child. Unfortunately, the baby died one hour
after delivery. May Alma recover the P100.000.00 that she
Answers to the BAR as Arranged by Topics had donated to
said baby before it was born considering
not been fixed in the Deed of Donation, the donee is not
ANOTHER SUGGESTED ANSWER:
The donation may not as yet revoked. The establishment of a
medical college is not a resolutory or suspensive condition but
a charge , obligation , or a mode . The non- compliance
with the charge or mode will give the donor the right to revoke
the donation within four (4) years from the time the charge
was supposed to have been complied with, or to enforce the
charge by specific performance within ten (10) years from the
time the cause of action accrued.
Inasmuch as the time to established the medical college has
yet default in his obligation until the period is fixed by order
of the court under Article 1197 of the New Civil Code. Since
the period has not been fixed as yet, the donee is not yet
default, and therefore the donor has no cause of action to
revoke the donation. (Dissenting opinion of Davide, CJ,
Central Philippine University v. Court of Appeals, 246 SCRA
511 [1995])
PROPERTY
Accretion; Alluvion (2001)
For many years, the Rio Grande river deposited soil along its
bank, beside the titled land of Jose. In time, such deposit
reached an area of one thousand square meters. With the
permission of Jose, Vicente cultivated the said area. Ten years
later, a big flood occurred in the river and transferred the 1000
square meters to the opposite bank, beside the land of Agustin.
The land transferred is now contested by Jose and Agustin as
riparian owners and by Vicente who claims ownership by
prescription. Who should prevail,? Why? (5%)
SUGGESTED ANSWER:
Jose should prevail. The disputed area, which is an alluvion,
belongs by right of accretion to Jose, the riparian owner (Art.
457 CC). When, as given in the problem, the very same area"
was "transferred" by flood waters to the opposite bank, it
became an avulsion and ownership thereof is retained by Jose
who has two years to remove it (Art. 459, CC). Vicente's claim
based on prescription is baseless since his possession was by
mere tolerance of Jose and, therefore, did not adversely affect
Jose's possession and ownership (Art. 537, CC). Inasmuch as
his possession is merely that of a holder, he cannot acquire the
disputed area by prescription.
Accretion; Avulsion (2003)
CIVIL LAW (Year 1990-2006)
Andres is a riparian owner of a parcel of registered land. His
land, however, has gradually diminished in area due to the
current of the river, while the registered land of Mario on the
opposite bank has gradually increased in area by 200square
meters.
(a) Who has the better right over the 200-square meter area
that has been added to Marios registered land, Mario or
Andres? (b) May a third person acquire said 200-square
meter land by prescription?
SUGGESTED ANSWER:
a. Mario has a better right over the 200 square meters
increase in area by reason of accretion, applying Article 457 of
the New Civil Code, which provides that to the owners of
lands adjoining the banks of rivers belong the accretion which
they gradually received from the effects of the current of the
waters .
Andres cannot claim that the increase in Marios land is his
own, because such is an accretion and not result of the sudden
detachment of a known portion of his land and its attachment
to Marios land, a process called avulsion . He can no longer
claim ownership of the portion of his registered land which was
gradually and naturally eroded due to the current of the river,
because he
had lost it by operation of law. That portion of the land has
become part of the public domain.
SUGGESTED ANSWER:
b. Yes, a third party may acquire by prescription the 200
square meters, increase in area, because it is not included in the
Torrens Title of the riparian owner. Hence, this does not
involve the imprescriptibility conferred by Section 47, P.D.
No. 1529. The fact that the riparian land is registered does not
automatically make the accretion thereto a registered land.
(Grande v. CA, 115 521 (1962); Jagualing v. CA, 194 SCRA
607 (1991).
Builder; Good Faith (1992)
A owns a parcel of residential land worth P500,000.00
unknown to A, a residential house costing P 100,000.00 is
built on the entire parcel by B who claims ownership of the
land. Answer all the following questions based on the premise
that B is a builder in good faith and A is a landowner in good
faith. a) May A acquire the house built by B? If so, how? b) If
the land increased in value to P500,000.00 by reason
of the building of the house thereon, what amount should
be paid by A in order to acquire the house from B?
c) Assuming that the cost of the house was P90,000.00
and not P100,000.00, may A require B to buy the land?
d) If B voluntarily buys the land as desired by A, under
what circumstances may A nevertheless be entitled to have the
house removed?
e) In what situation may a "forced lease" arise between
A and B. and what terms and conditions would govern the
lease?
Give reasons for your answers.
SUGGESTED ANSWER:
(a) Yes, A may acquire the house build by B by paying
indemnity to B. Article 448 of the Civil Code provides that
the owner of the land on which anything has been built, sown
or planted in good faith, shall have the right to appropriate as
his own the works, sowing or planting, after payment of the
indemnity provided for in Articles 546 and 546 of the Civil
Code.
(b) A should pay B the sum of P50,000. Article 548 of
the Civil Code provides that useful expenses shall be refunded
to the possessor in good faith with the right of retention, the
person who has defeated him in the possession having the
option of refunding the amount of the expenses or of paying
the increase in value which the thing may have acquired by
reason thereof. The increase in value amounts to P50,000.00.
(c) Yes, A may require B to buy the land. Article 448 of
the Civil Code provides that the owner of the land on which
anything has been built in good faith shall have the right to
oblige the one who built to pay the price of the land if its
value is not considerably more than that of the building,
(d) If B agrees to buy land but fails to pay, A can have
the house removed ( Depra vs. Dumlao, 136 SCRA 475).
(e) Article 448 of the Civil Code provides that the
builder cannot be obliged to buy the land if its value is
considerably more than that of the building. In such case, he
shall pay reasonable rent, if the owner of the land does not
choose to appropriate the building after proper indemnity.
The parties shall agree upon the terms of the lease and in case
of disagreement, the court fix the terms thereof.
Builder; Good Faith vs. Bad Faith (1999)
(a) Because of confusion as to the boundaries of the
adjoining lots that they bought from the same subdivision
company, X constructed a house on the adjoining lot of Y in
the honest belief that it is the land that he bought from the
subdivision company. What are the respective rights of X
and Y with respect to X's house? (3%) ( b) Suppose X was
in good faith but Y knew that X was constructing on his
(Y's) land but simply kept quiet about it, thinking perhaps
that he could get X's house later. What are the respective
rights of the parties over X's house in this
case? (2%)
SUGGESTED ANSWER:
(a) The rights of Y, as owner of the lot, and of X, as
builder of a house thereon, are governed by Art. 448 of the
Civil Code which grants to Y the right to choose between two
remedies: (a) appropriate the house by indemnifying X for its
value plus whatever necessary expenses the latter may have
incurred for the preservation of the land, or (b) compel X to
buy the land if the price of the land is not considerably more
than the value of the house. If it is, then X cannot be obliged
to buy the land but he shall pay reasonable rent, and in case of
disagreement, the court shall fix the terms of the lease.
SUGGESTED ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
(b) Since the lot owner Y is deemed to be in bad faith
(Art 453), X as the party in good faith may (a) remove the
house and demand indemnification for damages suffered by
him, or (b) demand payment of the value of the house plus
reparation for damages (Art 447, in relation to Art 454). Y
continues as owner of the lot and becomes, under the second
option, owner of the house as well, after he pays the sums
demanded.
Builder; Good Faith vs. Bad Faith (2000) In good
faith, Pedro constructed a five-door commercial building on
the land of Pablo who was also in good faith. When Pablo
discovered the construction, he opted to appropriate the
building by paying Pedro the cost thereof. However, Pedro
insists that he should be paid the current market value of the
the problem. In the Pecson case, the builder was the owner of
the land who later lost the property at a public sale due to non-
payment of taxes. The Court ruled that Article 448 does not
apply to the case where the owner of the land is the builder but
who later lost the land; not being applicable, the indemnity that
should be paid to the buyer must be the fair market value of
the building and not just the cost of construction thereof. The
Court opined in that case that to do otherwise would unjustly
enrich the new owner of the land.
ALTERNATIVE ANSWER:
Pedro is correct. In Pecson vs. CA, it was held that Article 546
of the New Civil Code does not specifically state how the value
of useful improvements should be determined in fixing the
amount of indemnity that the owner of the land should pay to
the builder in good faith. Since the objective of the law is to
adjust the rights of the parties in such manner as "to administer
complete justice to both of them in such a way as neither one
nor the other may enrich himself of that which does not
belong to him", the Court ruled that the basis of
reimbursement should be the fair market value of the building.
SUGGESTED ANSWER:
2) Pablo is entitled to the rentals of the building. As the owner
of the land, Pablo is also the owner of the building being an
accession thereto. However, Pedro who is entitled to retain the
building is also entitled to retain the rentals. He, however, shall
apply the rentals to the indemnity payable to him after
deducting reasonable cost of repair and maintenance.
ALTERNATIVE ANSWER:
Pablo is entitled to the rentals. Pedro became a possessor in
bad faith from the time he learned that the land belongs to
Pablo. As such, he loses his right to the building, including the
fruits thereof, except the right of retention.
Builder; Good Faith vs. Bad Faith; Accession
(2000)
a) Demetrio knew that a piece of land bordering the beach
belonged to Ernesto. However, since the latter was studying in
Europe and no one was taking care of the land, Demetrio
occupied the same and constructed thereon nipa sheds with
tables and benches which he rented out to people who want
to have a picnic by the beach. When Ernesto returned, he
demanded the return of the land. Demetrio agreed to do so
after he has removed the nipa sheds. Ernesto refused to let
building, which was much higher because of inflation. 1) Who
is correct Pedro or Pablo?(1%) 2) In the meantime that Pedro
is not yet paid, who is entitled to the rentals of the building,
Pedro or Pablo? (1%)
SUGGESTED ANSWER:
Pablo is correct. Under Article 448 of the New Civil Code in
relation to Article 546, the builder in good faith is entitled to a
refund of the necessary and useful expenses incurred by him,
or the increase in value which the land may have acquired by
reason of the improvement, at the option of the landowner.
The builder is entitled to a refund of the expenses he incurred,
and not to the market value of the improvement
Answers to the BAR as Arranged by Topics The
case of Pecson v. CA, 244 SCRA 407, is not applicable to
square meters. Jose claims that Mike is a builder in bad faith
Demetrio remove the nipa sheds on the ground that these
already belonged to him by right of accession. Who is correct?
(3%)
SUGGESTED ANSWER:
Ernesto is correct, Demetrio is a builder in bad faith because
he knew beforehand that the land belonged to Ernesto, under
Article 449 of the New Civil Code, one who builds on the land
of another loses what is built without right to indemnity.
Ernesto becomes the owner of the nipa sheds by right of
accession. Hence, Ernesto is well within his right in refusing
to allow the removal of the nipa sheds.
Builder; Good Faith vs. Bad Faith; Presumption
(2001) Mike built a house on his lot in Pasay City.
Two years later, a survey disclosed that a portion of
the building actually stood on the neighboring land
of Jose, to the extent of 40
because he should know the boundaries of his lot,
and demands that the portion of the house which
encroached on his land should be destroyed or
removed. Mike replies that he is a builder in good
faith and offers to buy the land occupied by the
building instead.
1) Is Mike a builder in good faith or bad faith? Why?
(3%) 2) Whose preference should be followed?
Why? (2%)
SUGGESTED ANSWER:
1) Yes, Mike is a builder in good faith. There is no showing
that when he built his house, he knew that a portion thereof
encroached on Jose's lot. Unless one is versed in the science
of surveying, he cannot determine the precise boundaries or
location of his property by merely examining his title. In the
absence of contrary proof, the law presumes that the
encroachment was done in good faith [Technogas Phils, v. CA,
268 SCRA 5, 15 (1997)].
2} None of the preferences shall be followed. The preference
of Mike cannot prevail because under Article 448 of the Civil
Code, it is the owner of the land who has the option or choice,
not the builder. On the other hand, the option belongs to Jose,
he cannot demand that the portion of the house encroaching
on his land be destroyed or removed because this is not one of
the options given by law to the owner of the land. The owner
CIVIL LAW (Year 1990-2006)
may choose between the appropriation of what was built after
payment of indemnity, or to compel the builder to pay for the
land if the value of the land is not considerably more than that
of the building. Otherwise, the builder shall pay rent for the
portion of the land encroached.
ALTERNATIVE ANSWER:
1) Mike cannot be considered a builder in good faith
because he built his house without first determining the
corners and boundaries of his lot to make sure that his
construction was within the perimeter of his property. He
could have done this with the help of a geodetic engineer as an
ordinary prudent and reasonable man would do under the
circumstances.
2) Jose's preference should be followed. He may have
the building removed at the expense of Mike, appropriate the
building as his own, oblige Mike to buy the land and ask for
damages in addition to any of the three options. (Articles 449,
450, 451, CC)
Chattel Mortgage vs. Pledge (1999)
Distinguish a contract of chattel mortgage from a contract of
pledge. (2%)
SUGGESTED ANSWER:
In a contract of CHATTEL MORTGAGE possession
belongs to the creditor, while in a contract of PLEDGE
possession belongs to the debtor.
A chattel mortgage is a formal contract while a pledge is a real
contract.
A contract of chattel mortgage must be recorded in a public
instrument to bind third persons while a contract of pledge
must be in a public instrument containing description of the
thing pledged and the date thereof to bind third persons.
Chattel Mortgage; Immovables (1994)
Vini constructed a building on a parcel of land he leased from
Andrea. He chattel mortgaged the land to Felicia. When he
could not pay Felicia. Felicia initiated foreclosure
proceedings. Vini claimed that the building he had
constructed on the leased land cannot be validly foreclosed
because the building was, by law, an immovable. Is Vini
correct?
SUGGESTED ANSWERS:
a) The Chattel Mortgage is void and cannot be
foreclosed because the building is an immovable and cannot
be an object of a chattel mortgage.
b) It depends. If the building was intended and is built
of light materials, the chattel mortgage may be considered as
valid as between the parties and it may be considered in respect
to them as movable property, since it can be removed from
one place to another. But if the building is of strong material
and is not capable of being removed or transferred without
being destroyed, the chattel mortgage is void and cannot be
foreclosed.
c) If it was the land which Vini chattel mortgaged, such
mortgage would be void, or at least unenforceable, since he
was not the owner of the land.
If what was mortgaged as a chattel is the building, the chattel
mortgage is valid as between the parties only, on grounds of
estoppel which would preclude the mortgagor from assailing
the contract on the ground that its subject-matter is an
immovable. Therefore Vini's defense is untenable, and Felicia
can foreclose the mortgage over the building, observing,
however, the procedure prescribed for the execution of sale of
a judgment debtor's immovable under Rule 39, Rules of Court,
specifically, that the notice of auction sale should be published
in a newspaper of general circulation.
d) The problem that Vini mortgaged the land by way of
a chattel mortgage is untenable. Land can only be the subject
matter of a real estate mortgage and only an absolute owner of
real property may mortgage a parcel of land. (Article 2085 (2)
Civil Code). Hence, there can be no foreclosure.
But on the assumption that what was mortgaged by way of
chattel mortgage was the building on leased land, then the
parties are treating the building as chattel. A building that is
not merely superimposed on the ground is an immovable
property and a chattel mortgage on said building is legally void
but the parties cannot be allowed to disavow their contract on
account of estoppel by deed. However, if third parties are
involved such chattel mortgage is void and has no effect.
Chattel Mortgage; Immovables (2003)
X constructed a house on a lot which he was leasing from Y.
Later, X executed a chattel mortgage over said house in favor
of Z as security for a loan obtained from the latter. Still later,
foreclosure sale, foreclosed the mortgage and acquired Xs
X acquired ownership of the land where his house was
constructed, after which he mortgaged both house and land
in favor of a bank, which mortgage was annotated on the
Torrens Certificate of Title. When X failed to pay his loan to
the bank, the latter, being the highest bidder at the
house and lot. Learning of the proceedings conducted by the
bank, Z is now demanding that the bank reconvey to him Xs
house or pay Xs loan to him plus interests. Is Zs demand
against the bank valid and sustainable? Why? 5%
SUGGESTED ANSWER:
No, Zs demand is not valid. A building is immovable or real
property whether it is erected by the owner of the land, by a
usufructuary, or by a lessee. It may be treated as a movable by
the parties to chattel mortgage but such is binding only
between them and not on third parties (Evangelista v. Alto
Surety Col, inc. 103 Phil. 401 [1958]). In this case, since the bank
is not a party to the chattel mortgage, it is not bound by it, as
far as the Bank is concerned, the chattel mortgage, does not
exist. Moreover, the chattel mortgage does not exist.
Moreover, the chattel mortgage is void because it was not
registered. Assuming that it is valid, it does not bind the Bank
because it was not annotated on the title of the land mortgaged
to the bank. Z cannot demand that the Bank pay him the loan
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Z extended to X, because the Bank was not privy to such loan
transaction.
ANOTHER SUGGESTED ANSWER:
No, Zs demand against the bank is not valid. His demand that
the bank reconvey to him Xs house presupposes that he has a
real right over the house. All that Z has is a personal right
against X for damages for breach of the contract of loan.

The treatment of a house, even if built on rented land, as

movable property is void insofar as third persons, such as the
bank, are concerned. On the other hand, the Bank already had
a real right over the house and lot when the mortgage was
annotated at the back of the Torrens title. The bank later
became the owner in the foreclosure sale. Z cannot ask the
bank to pay for Xs loan plus interest. There is no privity of
contract between Z and the bank. ALTERNATIVE ANSWER:
The answer hinges on whether or not the bank is an innocent
mortgagee in good faith or a mortgagee in bad faith. In the
former case, Zs demand is not valid. In the latter case, Zs
demand against the bank is valid and sustainable.

Under the Torrens system of land registration, every person

dealing with registered land may rely on the correctness of the
certificate of title and the law will not in any way oblige to him
to look behind or beyond the certificate in order to determine
the condition of the title. He is not bound by anything not
annotated or reflected in the certificate. If he proceeds to buy
the land or accept it as a collateral relying on the certificate, he
is considered a buyer or a mortgagee in good faith. On this
ground, the Bank acquires a clean title to the land and the
house.

However, a bank is not an ordinary mortgagee. Unlike private

individuals, a bank is expected to exercise greater care and
prudence in its dealings. The ascertainment of the condition of a
property offered as collateral for a loan must be a standard and
indispensable part of its operation. The bank should have
conducted further inquiry regarding the house standing on the
land considering that it was already
Page 59 of 119
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
standing there before X acquired the title to the land. The
bank cannot be considered as a mortgagee in good faith. On
this ground, Zs demand against the Bank is valid and
sustainable.
Chattel Mortgage; Possession (1993)
A, about to leave the country on a foreign assignment,
entrusted to B his brand new car and its certificate of
registration. Falsifying A's signature. B sold A's car to C for
P200,000.00. C then registered the car in his name. To
complete the needed amount, C borrowed P100.000.00 from
the savings and loan association in his office, constituting a
chattel mortgage on the car. For failure of C to pay the
amount owed, the savings and loan association filed in the
RTC a complaint for collection with application for issuance
of a writ of replevin to obtain possession of the vehicle so
that the chattel mortgage could be foreclosed. The RTC
issued the writ of replevin. The car was then seized from C
and sold by the sheriff at public auction at which the savings
and loan association was the lone bidder. Accordingly, the car
was sold to it. A few days later, A arrived from his foreign
assignment. Learning of what happened to his car, A sought
to recover possession and ownership of it from the savings
and loan association. Can A recover his car from the savings
and loan association? Explain your answer.
SUGGESTED ANSWER:
Under the prevailing rulings of the Supreme Court, A can
recover the car from the Savings and Loan Association
provided he pays the price at which the Association bought
the car at a public auction. Under that doctrine, there has
been an unlawful deprivation by B of A of his car and,
therefore, A can recover it from any person in possession
thereof. But since it was bought at a public auction in good
faith by the Savings and Loan Association, he must reimburse
the Association at the price for which the car was bought.
ALTERNATIVE ANSWER:
Yes, A can recover his car from the Savings and Loan
Association. In a Chattel Mortgage, the mortgagor must be
the absolute owner of the thing mortgaged. Furthermore, the
person constituting the mortgage must have the free disposal
of the property, and in the absence thereof, must be legally
authorized for the purpose. In the case at bar, these essential
requisites did not apply to the mortgagor B, hence the Chattel
Mortgage was not valid.
Chattel Mortgage; Preference of Creditors (1995)
Lawrence, a retired air force captain, decided to go into the air
transport business. He purchased an aircraft in cash except
for an outstanding balance of P500,000.00. He incurred an
indebtedness of P300,000.00 for repairs with an aircraft repair
company. He also borrowed P1 Million from a bank for
additional capital and constituted a chattel mortgage on the
aircraft to secure the loan.
While on a test flight the aircraft crashed causing physical
injuries to a third party who was awarded damages of
P200,000.00.
was then valued only at P1 Million. Lawrence was declared
Lawrence's insurance claim for damage to the aircraft was
denied thus leaving him nothing else but the aircraft which
insolvent.
Assuming that the aircraft was sold for Pl Million, give the
order of preference of the creditors of Lawrence and distribute
the amount of P1 Million.
SUGGESTED ANSWER:
Assuming that the aircraft was sold for P1 Million, there is no
order of preference. The P1 Million will all go to the bank as a
chattel mortgagee because a chattel mortgage under Art. 2241
(4) NCC defeats Art. 2244 (12) and (14}. Art. 2241 (3) and (5)
are not applicable because the aircraft is no longer in the
possession of the creditor.
Easement vs. Usufruct (1995)
1 . What is easement? Distinguish easement from usufruct.
2 . Can there be (a) an easement over a usufruct? (b) a
usufruct over an easement? (c) an easement over another
easement? Explain.
SUGGESTED ANSWER:
1. An EASEMENT or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable
belonging to a different owner. (Art. 613, NCC)
USUFRUCT gives a right to enjoy the property of another with
the obligation of preserving its form and substance, unless the
title constituting it or the law otherwise provides. (Art. 562,
NCC).
ALTERNATIVE ANSWER:
Easement is an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different
owner in which case it is called real or predial easement, or for
the benefit of a community or group of persons in which case
it is known as a personal easement.
The distinctions between usufruct and easement are:
a) Usufruct includes all uses of the property and for all
purposes, including jus fruendi. Easement is limited to a
specific use.
b) Usufruct may be constituted on immovable or
movable property. Easement may be constituted only on an
immovable property.
c) Easement is not extinguished by the death of the
owner of the dominant estate while usufruct is extinguished by
the death of the usufructuary unless a contrary intention
appears.
d) An easement contemplates two (2) estates belonging
to two (2) different owners; a usufruct contemplates only one
property (real or personal) whereby the usufructuary uses and
enjoys the property as well as its fruits, while another owns the
naked title during the period of the usufruct.
e) A usufruct may be alienated separately from the
property to which it attaches, while an easement cannot be
alienated separately from the property to which it attaches.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
NOTE: It is recommended by the Committee that any two
(2) distinctions should be given full credit .
SUGGESTED ANSWER:
2. (a) There can be no easement over a usufruct. Since an
easement may be constituted only on a corporeal immovable
property, no easement may be constituted on a usufruct which
is not a corporeal right
(b) There can be no usufruct over an easement. While a
usufruct maybe created over a right, such right must have an
existence of its own independent of the property. A servitude
cannot be the object of a usufruct because it has no existence
independent of the property to which It attaches.
ALTERNATIVE ANSWERS:
There cannot be a usufruct over an easement since an
easement presupposes two (2) tenements belonging to
different persons and the right attaches to the tenement and
not to the owner. While a usufruct gives the usufructuary a
right to use, right to enjoy, right to the fruits, and right to
possess, an easement gives only a limited use of the servient
estate.
However, a usufruct can be constituted over a property that
has in its favor an easement or one burdened with servitude.
The usufructuary will exercise the easement during the period
of usufruct.
(c) There can be no easement over another easement for
the same reason as in (a). An easement, although it is a real
right over an immovable, is not a corporeal right. There is a
Roman maxim which says that: There can be no servitude over
another servitude.
Easement; Effects; Discontinuous Easements;
Permissive
Use (2005)
Don was the owner of an agricultural land with no access to a
public road. He had been passing through the land of Ernie
with the latter's acquiescence for over 20 years. Subsequently,
Don subdivided his property into 20 residential lots and sold
them to different persons. Ernie blocked the pathway and
refused to let the buyers pass through his land.
a) Did Don acquire an easement of right of way? Explain.
(2%) ALTERNATIVE
ANSWER:
No, Don did not acquire an easement of right of way. An
easement of right of way is discontinuous in nature it is
exercised only if a man passes over somebody's land. Under
Article 622 of the Civil Code, discontinuous easements,
whether apparent or not, may only be acquired by virtue of a
title. The Supreme Court, in Abellana, Sr. v. Court of Appeals
(G.R. No. 97039, April 24, 1992), ruled that an easement of right
of way being discontinuous in nature is not acquirable by
prescription.
Further, possession of the easement by Don is only permissive,
tolerated or with the acquiescence of Ernie. It is settled in the
case of Cuaycong v. Benedicto (G.R. No. 9989, March 13, 1918)
that a permissive use of a road over the land of another, no
matter how long continued, will not create an easement of way
by prescription.
ALTERNATIVE ANSWER:
there is a degree of regularity to indicate continuity of
Yes, Don acquired an easement of right of way. An easement that is
continuous and apparent can be acquired by prescription and title.
According to Professor Tolentino, an easement of right of way may
have a continuous nature if
possession and that if coupled with an apparent sign, such
easement of way may be acquired by prescription.
ALTERNATIVE ANSWER:
Yes, Ernie could close the pathway on his land. Don has not
acquired an easement of right of way either by agreement or by
judicial grant. Neither did the buyers. Thus, establishment of a
road or unlawful use of the land of Ernie would constitute an
invasion of possessory rights of the owner, which under Article
429 of the Civil Code may be repelled or prevented. Ernie has
the right to exclude any person from the enjoyment and
disposal of the land. This is an attribute of ownership that
Ernie enjoys. ALTERNATIVE ANSWER:
Yes, Ernie may close the pathway, subject however, to the
rights of the lot buyers. Since there is no access to the public
road, this results in the creation of a legal easement. The lot
buyers have the right to demand that Ernie grant them a right
of way. In turn, they have the obligation to pay the value of the
portion used as a right of way, plus damages.
c) What are the rights of the lot buyers, if any? Explain.
(2%) SUGGESTED
ANSWER:
Prior to the grant of an easement, the buyers of the dominant
estate have no other right than to compel grant of easement
of right of way. Since the properties of the buyers are
surrounded by other immovables and has no adequate outlet
to a public highway and the isolation is not due to their acts,
buyers may demand an easement of a right of way provided
proper indemnity is paid and the right of way demanded is
the shortest and least prejudicial to Ernie. (Villanueva v.
Velasco, G.R. No. 130845, November 27, 2000).
Easement; Nuisance; Abatement (2002)
Lauro owns an agricultural land planted mostly with fruit trees.
Hernando owns an adjacent land devoted to his piggery
business, which is two (2) meters higher in elevation. Although
Hernando has constructed a waste disposal lagoon for his
piggery, it is inadequate to contain the waste water containing
pig manure, and it often overflows and inundates Lauros
plantation. This has increased the acidity of the soil in the
plantation, causing the trees to wither and die. Lauro sues for
damages caused to his plantation. Hernando invokes his right
to the benefit of a natural easement in favor of his higher estate,
which imposes upon the lower estate of Lauro the obligation
to receive the waters descending from the higher estate. Is
Hernando correct? (5%)
SUGGESTED ANSWER:
Hernando is wrong. It is true that Lauros land is burdened
with the natural easement to accept or receive the water which
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
naturally and without interruption of man descends from a
higher estate to a lower estate. However, Hernando has
constructed a waste disposal lagoon for his piggery and it is this
waste water that flows downward to Lauros land. Hernando
has, thus, interrupted the flow of water and has created and is
maintaining a nuisance. Under Act. 697 NCC, abatement of a
nuisance does not preclude recovery of damages by Lauro even
for the past existence of a nuisance.
The claim for damages may also be premised in Art. 2191
(4) NCC.
ANOTHER ANSWER:
Hernando is not correct. Article 637 of the New Civil Code
provides that the owner of the higher estate cannot make
works which will increase the burden on the servient estate.
(Remman Enterprises, Inc. v. CA, 330 SCRA 145 [2000]). The
owner of the higher estate may be compelled to pay damages
to the owner of the lower estate.
Easements; Classification (1998)
Distinguish between:
1. Continuous and discontinuous easements; |2%]
2. Apparent and non-apparent easements; and [2%]
3 . Positive and negative easements. [1%]
SUGGESTED ANSWER:
1. CONTINUOUS EASEMENTS are those the use of
which is or may be incessant, without the intervention of any
act of man, while DISCONTINUOUS EASEMENTS are
those which are used at intervals and depend upon the acts of
man. (Art. 615, Civil Code)
SUGGESTED ANSWER:
2. APPARENT EASEMENTS are those which are made
known and are continually kept in view by external signs that
reveal the use and enjoyment of the same, while
NONAPPARENT EASEMENTS are those which show no
external indication of their existence. (Art. 615, Civil Code)
SUGGESTED ANSWER:
3. POSITIVE EASEMENTS are those which impose upon
the owner of the servient estate the obligation of allowing
something to be done or of doing it himself, while
NEGATIVE EASEMENTS are those which prohibit the
owner of the servient estate from doing something which he
could lawfully do if the easement did not exist. (Art. 615. Civil
Code)
Easements; Right of Way (1993)
Tomas Encarnacion's 3,000 square meter parcel of land,
where he has a plant nursery, is located just behind Aniceta
Magsino's two hectare parcel land. To enable Tomas to have
access to the highway, Aniceta agreed to grant him a road
right of way a meter wide through which he could pass.
Through the years Tomas' business flourished which enabled
him to buy another portion which enlarged the area of his
plant nursery. But he was still landlocked. He could not bring
in and out of his plant nursery a jeep or delivery panel much
less a truck that he needed to transport his seedlings. He now
asked Aniceta to grant him a wider portion of her property,
the price of which he was willing to pay, to enable him to
construct a road to have access to his plant nursery. Aniceta
refused claiming that she had already allowed him a previous
road right of way. Is Tomas entitled to the easement he now
demands from Aniceta?
SUGGESTED ANSWER:
Art. 651 of the Civil Code provides that the width of the easement
must be sufficient to meet the needs of the dominant estate, and
to time. As Tomas' business grows, the need for use of
may accordingly change from time to time. It is the need of the
dominant estate which determines the width of the passage. These
needs may vary from time
modern conveyances requires widening of the easement.
ALTERNATIVE ANSWER:
The facts show that the need for a wider right of way arose
from the increased production owing to the acquisition by
Tomas of an additional area. Under Art. 626 of the Civil Code,
the easement can be used only for the immovable originally
contemplated. Hence, the increase in width is justified and
should have been granted.
Easements; Right of Way (2000)
The coconut farm of Federico is surrounded by the lands of
Romulo. Federico seeks a right of way through a portion of the
land of Romulo to bring his coconut products to the market.
He has chosen a point where he will pass through a housing
project of Romulo. The latter wants him to pass another way
which is one kilometer longer. Who should prevail? (5%)
SUGGESTED ANSWER:
Romulo will prevail. Under Article 650 of the New Civil Code,
the easement of right of way shall be established at the point
least prejudicial to the servient estate and where the distance
from the dominant estate to a public highway is the shortest.
In case of conflict, the criterion of least prejudice prevails over the criterion
of shortest distance. Since the route chosen by Federico will
prejudice the housing project of Romulo, Romulo has the right
to demand that Federico pass another way even though it will
be longer.
Easements; Right of Way; Inseparability (2001)
Emma bought a parcel of land from Equitable-PCI Bank,
which acquired the same from Felisa, the original owner.
Thereafter, Emma discovered that Felisa had granted a right of
way over the land in favor of the land of Georgina, which had
no outlet to a public highway, but the easement was not
annotated when the servient estate was registered under the
Torrens system. Emma then filed a complaint for cancellation
of the right of way, on the ground that it had been extinguished
by such failure to annotate. How would
you decide the controversy? (5%) SUGGESTED
ANSWER:
The complaint for cancellation of easement of right of way
must fail. The failure to annotate the easement upon the title
of the servient estate is not among the grounds for
extinguishing an easement under Art. 631 of the Civil Code.
Under Article 617, easements are inseparable from the estate
to which they actively or passively belong. Once it attaches, it
can only be extinguished under Art. 631, and they exist even if
they are not stated or annotated as an encumbrance on the
Torrens title of the servient estate. (II Tolentino 326, 1987 ed.)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
ALTERNATIVE ANSWER:
Under Section 44, PD No. 1529, every registered owner
receiving a certificate of title pursuant to a decree of
registration, and every subsequent innocent purchaser for
value, shall hold the same free from all encumbrances except
those noted on said certificate. This rule, however, admits of
exceptions.
Under Act 496, as amended by Act No. 2011, and Section 4,
Act 3621, an easement if not registered shall remain and shall
be held to pass with the land until cutoff or
extinguished by the registration of the servient estate.
However, this provision has been suppressed in Section 44,
PD No. 1529. In other words, the registration of the servient
estate did not operate to cut-off or extinguish the right of
way. Therefore, the complaint for the cancellation of the right
of way should be dismissed.
Easements; Right of Way; Requisites (1996)
David is the owner of the subdivision in Sta. Rosa, Laguna,
without an access to the highway. When he applied for a
license to establish the subdivision, David represented that he
will purchase a rice field located between his land and the
highway, and develop it into an access road. But. when the
license was already granted, he did not bother to buy the rice
field, which remains unutilized until the present. Instead, he
chose to connect his subdivision with the neighboring
subdivision of Nestor, which has an access to the highway.
Nestor allowed him to do this, pending negotiations on the
compensation to be paid. When they failed to arrive at an
agreement, Nestor built a wall across the road connecting
with David's subdivision. David filed a complaint in court, for
the establishment of an easement of right of way through the
subdivision of Nestor which he claims to be the most
adequate and practical outlet to the highway. 1) What are the
requisites for the establishment of a compulsory easement of
a right of way?
SUGGESTED ANSWER:
Art, 649, NCC. The owner, or any person who by virtue of a
real right may cultivate or use any immovable which is
surrounded by other immovables pertaining to other persons
and without adequate outlet to a public highway, is entitled to
demand a right of way through the neighboring estates, after
payment of the property indemnity.
Should this easement be established in such a manner that its
use may be continuous for all the needs of the dominant
estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of
the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for
the cultivation of the estate surrounded by others and for the
gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of
the damage cause by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts. (564a). The
easement of right of way shall be established at the point least
prejudicial to the servient estate, and insofar as consistent
with this rule, where the distance from the dominant estate to
a public highway may be the shortest (Art. 650, NCC: Vda. de
Baltazar v. CA. 245 SCRA 333} ALTERNATIVE
ANSWER:
The requisites for a compulsory easement of right of way are: (a)
the dominant estate is surrounded by other immovables and is
without an adequate outlet to a public street or highway; (b) proper
indemnity must be paid; (c) the isolation must not be due to the acts
of the owner of the dominant estate; and (d) the right of way
consistent with this rule, where the distance to the street or
claimed is at a point least prejudicial to the servient estate and,
insofar as is
highway is shortest.
2) Is David entitled to a right of way in this case? Why or why
not?
SUGGESTED ANSWER:
No, David is not entitled to the right of way being claimed.
The isolation of his subdivision was due to his own act or
omission because he did not develop into an access road the
rice field which he was supposed to purchase according to his
own representation when he applied for a license to establish
the subdivision (Floro us. Llenado, 244 SCRA713).
Ejectment Suit vs. Cancellation of Title (2005)
In an ejectment case filed by Don against Cesar, can the latter
ask for the cancellation of Don's title considering that he
(Cesar) is the rightful owner of the lot? Explain. (2%)
SUGGESTED ANSWER:
Cesar cannot ask for the cancellation of Don's title even if he is
the rightful owner of the lot. In an action for ejectment, the only
issue involved is one of possession de facto, the purpose of which
is merely to protect the owner from any physical encroachment
from without. The title of the land or its ownership is not involved,
for if a person is in actual possession thereof, he is entitled to be
maintained and respected in it even against the owner himself.
(Garcia
v. Anas, G.R. No. L-20617, May 31, 1965)
Since the case filed by Don against Cesar is an ejectment case,
the latter cannot ask for the cancellation of Don's title. He has
to file the proper action where the issue of ownership over the
property can be raised.
Ejectment Suit; Commodatum (2006)
Alberto and Janine migrated to the United States of America,
leaving behind their 4 children, one of whom is Manny. They
own a duplex apartment and allowed Manny to live in one of
the units. While in the United States, Alberto died. His widow
and all his children executed an Extrajudicial Settlement of
Alberto's estate wherein the 2door apartment was assigned by
all the children to their mother, Janine. Subsequently, she sold
the property to George. The latter required Manny to sign a
prepared Lease Contract so that he and his family could
continue occupying the unit. Manny refused to sign the
contract alleging that his parents allowed him and his family to
continue occupying the premises.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
If you were George's counsel, what legal steps will you
take? Explain. (5%)
SUGGESTED ANSWER:
If I were George's counsel, I would first demand that Manny
vacate the apartment. If Manny refuses, I will file an ejectment
suit. When Manny was allowed by his parents to occupy the
premises, without compensation, the contract of
commodatum was created. Upon the death of the father, the
contract was extinguished as it is a purely personal contract. As
the new owner of the apartment George is entitled to exercise
his right of possession over the same.
Extra-Judicial Partition; Fraud (1990)
X was the owner of a 10,000 square meter property. X married
Y and out of their union. A, B and C were born.
After the death of Y, X married Z and they begot as children,
D, E and F. After the death of X, the children of the first and
second marriages executed an extrajudicial partition of the
aforestated property on May 1, 1970. D, E and F were given a
one thousand square meter portion of the property. They were
minors at the time of the execution of the document. D was 17
years old, E was 14 and F was 12;
and they were made to believe by A, B and C that unless they
sign the document they will not get any share. Z was not
present then. In January 1974, D, E and F filed an action in
court to nullify the suit alleging they discovered the fraud only
in 1973.
(a) Can the minority of D, E and F be a basis to nullify
the partition? Explain your answer.
(b) How about fraud? Explain your answer.
SUGGESTED ANSWER:
(a) Yes, minority can be a basis to nullify the partition
because D, E and F were not properly represented by their
parents or guardians at the time they contracted the
extrajudicial partition. (Articles 1327. 1391, Civil Code).
(b) In the case of fraud, when through insidious words
or machinations of one party the other is induced to enter
into the contract without which he would not have agreed to,
the action still prosper because under Art, 1391 of the Civil
Code, in case of fraud, the action for annulment may be
brought within four years from the discovery of the fraud.
Hidden Treasure (1995)
Tim came into possession of an old map showing where a
purported cache of gold bullion was hidden. Without any
authority from the government Tim conducted a relentless
search and finally found the treasure buried in a new river bed
formerly part of a parcel of land owned by spouses Tirso and
Tessie. The old river which used to cut through the land of
spouses Ursula and Urbito changed its course through natural
causes. To whom shall the treasure belong? Explain.
SUGGESTED ANSWER:
The treasure was found in a property of public dominion, the
new river bed. Since Tim did not have authority from the
government and, therefore, was a trespasser, he is not entitled
to the one-half share allotted to a finder of hidden treasure. All
of it will go to the State. In addition, under Art. 438 of the NCC
in order that the finder be entitled to the 1/2 share, the treasure
must be found by chance, that is by sheer luck. In this case,
since Tim found the treasure not by chance but because he
relentlessly searched for it, he is not entitled to any share in the
hidden treasure.
ALTERNATIVE ANSWER:
The law grants a one-half share to a finder of hidden treasure
provided he is not a trespasser and the finding is by chance. It is
submitted that Tim is not a trespasser despite his not getting
authority from the government, because the new river bed where he
found the treasure is property for public use (Art. 420 NCC), to
which the public has legitimate access. The question, therefore,
boils down to whether or not the finding was by chance in view of
the fact that Tim "conducted a relentless search" before finding the
treasure. The strict or literal view holds that deliberate or intentional
search precludes entitlement to the one-half
share allotted by law to the finder since the phrase "by
chance" means "by accident", meaning an unexpected discovery.
The liberal view, however, would sustain Tim's right to the allocated
share interpreting the phrase in question as meaning "by a stroke of
good fortune", which does not rule out deliberate or intentional
search. It is submitted that the liberal view should prevail since in
practical reality, hidden treasure is hardly ever found without
conscious effort to find it, and the strict view would tend to render
the codal provision in question illusory.
Hidden Treasures (1997)
Marcelino, a treasure hunter as just a hobby, has found a map
which appears to indicate the location of hidden treasure. He
has an idea of the land where the treasure might possibly be
found. Upon inquiry, Marcelino learns that the owner of the
land, Leopoldo, is a permanent resident of Canada, Nobody,
however, could give him Leopoldo's exact address.
Ultimately, anyway, he enters the land and conducts a search.
He succeeds.
Leopoldo learning of Marcelino's "find", seeks to recover the
treasure from Marcelino but the latter is not willing to part
with it. Failing to reach an agreement, Leopoldo sues
Marcelino for the recovery of the property. Marcelino
contests the action. How would you decide the case?
SUGGESTED ANSWER:
I would decide in favor of Marcelino since he is considered a
finder by chance of the hidden treasure, hence, he is entitled
to one-half (1/2) of the hidden treasure. While Marcelino may
have had the intention to look for the hidden treasure, still he
is a finder by chance since it is enough that he tried to look
for it. By chance in the law does not mean sheer luck such
that the finder should have no intention at all to look for the
treasure. By chance means good luck, implying that one who
intentionally looks for the treasure is embraced in the
provision. The reason is that it is extremely difficult to find
hidden treasure without looking for it deliberately. Marcelino
is not a trespasser since there is no prohibition for him to
enter the premises, hence, he is entitled to half of the treasure.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
ALTERNATIVE ANSWERS:
1. Marcelino did not find the treasure by chance
because he had a map, he knew the location of the hidden
treasure and he intentionally looked for the treasure, hence,
he is not entitled to any part of the treasure.
2. Marcelino appears to be a trespasser and although
there may be a question of whether he found it by chance or
not, as he has found the hidden treasure by means of a
treasure map, he will not be entitled to a finder's share. The
hidden treasure shall belong to the owner.
3. The main rule is that hidden treasure belongs to the
owner of the land, building or other property on which it is
found. If it is found by chance by a third person and he is not
a trespasser, he is entitled to one-half (1/2). If he is a
trespasser, he loses everything.
Mortgage; Pactum Commissorium (1999)
Page 64 of 119
(a) X borrowed money from Y and gave a piece of land
as security by way of mortgage. It was expressly agreed
between the parties in the mortgage contract that upon
nonpayment of the debt on time by X, the mortgaged
land would already belong to Y. If X defaulted in
paying, would Y now become the owner of the
mortgaged land? Why? (3%)
(b) Suppose in the preceding question, the agreement
between X and Y was that if X failed to pay the mortgage debt
on time, the debt shall be paid with the land mortgaged by X
to Y. Would your answer be the same as in the
preceding question? Explain. (3%) SUGGESTED
ANSWER:
(a) No, Y would not become the owner of the land. The
stipulation is in the nature of pactum commissorium which is
prohibited by law. The property should be sold at public
auction and the proceeds thereof applied to the indebtedness.
Any excess shall be given to the mortgagor.
SUGGESTED ANSWER:
(d) No, the answer would not be the same. This is a valid
stipulation and does not constitute pactum commissorium. In
pactum commissorium, the acquisition is automatic without
need of any further action. In the instant problem another act
is required to be performed, namely, the conveyance of the
property as payment (dacion en pago).
Mortgage; Pactum Commissorium (2001)
To secure a loan obtained from a rural bank, Purita assigned
her leasehold rights over a stall in the public market in favor
of the bank. The deed of assignment provides that in case
of default in the payment of the loan, the bank shall have
the right to sell Purita's rights over the market stall as her
attorney-in-fact, and to apply the proceeds to the payment
of the loan. 1) Was the assignment of leasehold rights a
mortgage or a cession? Why? (3%)
2) Assuming the assignment to be a mortgage, does the
provision giving the bank the power to sell Purita's rights
constitute pactum commissorium or not? Why? (2%)
SUGGESTED ANSWER:
1) The assignment was a mortgage, not a cession, of the
leasehold rights. A cession would have transferred ownership
to the bank. However, the grant of authority to the bank to sell
the leasehold rights in case of default is proof that no such
ownership was transferred and that a mere encumbrance was
constituted. There would have been no need for such authority
had there been a cession.
SUGGESTED ANSWER:
2) No, the clause in question is not a pactum
commissorium. It is pactum commissorium when default in the payment
of the loan automatically vests ownership of the encumbered property in the
bank. In the problem given, the bank does not automatically
become owner of the property upon default of the mortgagor.
The bank has to sell the property and apply the proceeds to the
indebtedness.
Are the right of redemption and the equity of redemption
Mortgage; Right of Redemption vs. Equity of
Redemption
(1999)
given by law to a mortgagor the same? Explain. (2%)
SUGGESTED ANSWER:
The equity of redemption is different from the right of
redemption. EQUITY OF REDEMPTION is the right of the
mortgagor after judgment in a judicial foreclosure to redeem
the property by paying to the court the amount of the judgment
debt before the sale or confirmation of the sale. On the other
hand, RIGHT OF REDEMPTION is the right of the
mortgagor to redeem the property sold at an extra-judicial
foreclosure by paying to the buyer in the foreclosure sale the
amount paid by the buyer within one year from such sale.
Nuisance; Family House; Not Nuisance per se
(2006)
A drug lord and his family reside in a small bungalow where
they sell shabu and other prohibited drugs. When the police
found the illegal trade, they immediately demolished the house
because according to them, it was a nuisance per se that should
be abated. Can this demolition be sustained?
Explain. (5%)
SUGGESTED ANSWER:
No, the demolition cannot be sustained. The house is not a
nuisance per se or at law as it is not an act, occupation, or
structure which is a nuisance at all times and under any
circumstances, regardless of location or surroundings. A
nuisance per se is a nuisance in and of itself, without regard to
circumstances [Tolentino, p. 695, citing Wheeler v. River Falls
Power Co., 215 Ala. 655, 111 So. 907].
Nuisance; Public Nuisance vs. Private Nuisance
(2005)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
State with reason whether each of the following is a nuisance,
and if so, give its classification, whether public or private:
Article 694 of the Civil Code defines nuisance as any act,
omission, establishment, business, condition or property, or
anything else which injures or endangers the health or safety of
others, or annoys or offends the senses, or shocks, defies or
disregards decency or morality or obstructs or interferes with
the free passage of any public highway or street or any body of
water or hinders or impairs the use of property.
It is a public nuisance if it affects a community or
neighborhood or any considerable number of persons. It is a
direct encroachment upon public rights or property which
results injuriously to the public. It is a private nuisance, if it
affects only a person or small number of persons. It violates
only private rights.
a) A squatter's hut (1%)
If constructed on public streets or riverbeds, it is a public
nuisance because it obstructs the free use by the public of said
places. (City of Manila v. Garcia, G.R. No. L-26053, February
21,1967) If constructed on private land, it is a private nuisance
because it hinders or impairs the use of the property by the
owner.
b) A swimming pool (1%)
This is not a nuisance in the absence of any unusual condition
or artificial feature other than the mere water. In
Hidalgo Enterprises v. Balandan (G.R. No. L-3422, June 13,
a duplication of nature thus, could not be considered as a
1952), the Supreme Court ruled that a swimming pool is but
nuisance.
c) A house of prostitution (1%)
Irrespective of its location and how its business is conducted,
it is a nuisance since it defies, shocks and disregards decency
and morality. It is a public nuisance because of its injury to
the public.
d) A noisy or dangerous factory in a private land
(1%) If the noise injuriously affects the health and
comfort of ordinary people in the vicinity to an
unreasonable extent, it is a nuisance. It is a public
nuisance because there is a tendency to annoy the
public. (Velasco v. Manila Electric Co., G.R. No.
L-18390, August 6, 1971)
e) Uncollected garbage (1%)
It will become a nuisance if it substantially impairs the
comfort and enjoyment of the adjacent occupants. The
annoyance and the smell must be substantial as to interfere
sensibly with the use and enjoyment by persons of ordinary
sensibilities. It is a public nuisance because of its injury to the
public.
Ownership; Co-Ownership (1992)
A, B and C are the co-owners in equal shares of a residential
house and lot. During their co-ownership, the following acts
were respectively done by the co-owners: 1) A undertook
the repair of the foundation of the house, then tilting to
one side, to prevent the house from
collapsing. 2) B and C mortgaged the house and lot to secure a
loan. 3) B engaged a contractor to build a concrete fence all
around the lot. 4) C built a beautiful grotto in the
garden. 5) A and C sold the land to X for a very good
price.
(a) Is A's sole decision to repair the foundation of the
house binding on B and C? May A require B and C to
contribute their 2/3 share of the expense?
Reasons.
(b) What is the legal effect of the mortgage contract
executed by B and C? Reasons. (c) Is B's sole
decision to build the fence binding upon A and C?
May B require A and C to contribute their 2/ 3 share
of the expense? Reasons.
(d)Is C's sole decision to build the grotto binding upon
A and B? May C require A and B to contribute their 2/
3 share of the expense? Reasons.
(e) What are the legal effects of the contract of sale
executed by A. C and X? Reasons.
SUGGESTED ANSWER:
(a) Yes. A's sole decision to repair the foundation is binding
upon B and C. B and C must contribute 2/3 of the expense.
(b) The mortgage shall not bind the 1/3 right and interest
Each co-owner has the right to compel the other co-owners
to contribute to the expense of preservation of the thing (the
house) owned in common in proportion to their respective
interests (Arts. 485 and 488, Civil Code).
SUGGESTED ANSWER:
of A and shall be deemed to cover only the rights and interests
of B and C in the house and lot. The mortgage shall be limited
to the portion (2/3) which may be allotted to B and C in the
partition (Art. 493, Civil Code).
SUGGESTED ANSWER:
(c) B's sole decision to build the concrete fence is not
binding upon A and C. Expenses to improve the thing owned
in common must be decided upon by a majority of the co-
owners who represent the controlling interest (Arts. 489 and
492. Civil Code).
SUGGESTED ANSWER:
(d) C's sole decision to build the grotto is not binding
upon A and B who cannot be required to contribute to the
expenses for the embellishment of the thing owned in
common if not decided upon by the majority of the coowners
who represent the controlling interest (Arts. 489 and 492, Civil
Code).
SUGGESTED ANSWER:
(e) The sale to X shall not bind the 1/3 share of B and
shall be deemed to cover only the 2/3 share of A and C in the
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

land (Art. 493, Civil Code). B shall have the right to redeem the
2/3 share sold to X by A and C since X is a third person (Art.
1620, Civil Code).

Ownership; Co-Ownership; Prescription (2000)

In 1955, Ramon and his sister Rosario inherited a parcel of land
in Albay from their parents. Since Rosario was gainfully
employed in Manila, she left Ramon alone to possess and
cultivate the land. However, Ramon never shared the harvest
with Rosario and was even able to sell one-half of the land in
1985 by claiming to be the sole heir of his parents. Having
reached retirement age in 1990 Rosario returned to the
province and upon learning what had transpired, demanded
that the remaining half of the land be given to her as her share.
Ramon opposed, asserting that he has already acquired
ownership of the land by prescription, and that Rosario is
barred by laches from demanding partition and reconveyance.
Decide the conflicting claims. (5%)
SUGGESTED ANSWER:
Ramon is wrong on both counts: prescription and laches. His
possession as co-owner did not give rise to acquisitive
prescription. Possession by a co-owner is deemed not adverse
to the other co-owners but is, on the contrary, deemed
beneficial to them (Pongon v. GA, 166 SCRA 375). Ramon's
possession will become adverse only when he has repudiated
the co-ownership and such repudiation was made known to
Rosario. Assuming that the sale in 1985 where Ramon claimed
he was the sole heir of his parents amounted to a repudiation
of the co-ownership, the prescriptive period began to run only
from that time. Not more than 30 years having lapsed since
then, the claim of Rosario has not as yet prescribed. The claim
of laches is not also meritorious. Until the repudiation of the
co-ownership was made known to the other co-owners, no
right has been violated for the said co-owners to vindicate.
Mere delay in vindicating the right, standing alone, does not
constitute laches.
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
ALTERNATIVE ANSWER:
Ramon has acquired the land by acquisitive prescription, and
because of laches on the part of Rosario. Ramon's possession
of the land was adverse because he asserted sole ownership
thereof and never shared the harvest therefrom. His adverse
possession having been continuous and uninterrupted for more
than 30 years, Ramon has acquired the land by prescription.
Rosario is also guilty of laches not having asserted her right to
the harvest for more than 40 years.
Ownership; Co-Ownership; Prescription (2002)
Senen and Peter are brothers. Senen migrated to Canada early
while still a teenager. Peter stayed in Bulacan to take care of
their widowed mother and continued to work on the Family
farm even after her death. Returning to the country some thirty
years after he had left, Senen seeks a partition of the farm to get
his share as the only co-heir of Peter. Peter interposes his
opposition, contending that acquisitive prescription has
already set in and that estoppel lies to bar the action for
partition, citing his continuous possession of the property for
at least 10 years, for almost 30 years in fact. It is undisputed that
Peter has never openly claimed sole ownership of the property.
If he ever had the intention to do so, Senen was completely
ignorant of it. Will Senens action prosper? Explain. (5%).
SUGGESTED ANSWER:
Senens action will prosper. Article 494 of the New Civil Code
provides that no prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so long as he
expressly or impliedly recognizes the coownership nor notified
Senen of his having repudiated the same.
ALTERNATIVE ANSWER:
Senens action will prosper. This is a case of implied trust. (Art
1441, NCC) For purposes of prescription under the concept of
an owner (Art. 540, NCC). There is no such concept here. Peter
was a co-owner, he never claimed sole ownership of the
property. He is therefore estopped under Art. 1431, NCC.
Ownership; Co-Ownership; Redemption (1993)
In 1937, A obtained a loan of P20,000.00 from the National
City Bank of New York, an American-owned bank doing
business in the Philippines. To guarantee payment of his
obligation, A constituted a real estate mortgage on his
30hectare parcel of agricultural land. In 1939, before he could
pay his obligation. A died intestate leaving three children. B, a
son by a first marriage, and C and D, daughters by a second
marriage. In 1940, the bank foreclosed the mortgage for non-
payment of the principal obligation. As the only bidder at the
extrajudicial foreclosure sale, the bank bought the property and
was later issued a certificate of sale. The war supervened in 1941
without the bank having been able to obtain actual possession
of the property which remained with A's three children who
appropriated for themselves the income from it. In 1948, B
bought the property from the bank using the money he
received as back pay from the U. S. Government, and utilized
the same in agribusiness. In 1960, as B's business flourished, C
and D sued B for partition and accounting of the income of the
property, claiming that as heirs of their father they were co-
owners
thereof and offering to reimburse B for whatever he had paid
in purchasing the property from the bank. In brief, how will
you answer the complaint of C and D, if you were engaged
by D as his counsel?
SUGGESTED ANSWER:
As counsel of B, I shall answer the complaint as follows: When
B bought the property, it was not by a right of redemption since
the period therefore had already expired. Hence, B bought the
property in an independent unconditional sale. C and D are not
co-owners with B of the property. Therefore, the suit of C and
D cannot prosper.
ALTERNATIVE ANSWER:
As counsel of B, I shall answer the complaint as follows: From
the facts described, it would appear that the Certificate of sale
has not been registered. The one-year period of redemption
begins to run from registration. In this case, it has not yet even
commenced. Under the Rules of Court, the property may be
released by the Judgment debtor or his successor in interest.
(Sec. 29, Rule 27). It has been held that this includes a joint
owner. (Ref. Magno vs.Ciola, 61 Phil. 80).
Ownership; Co-Ownership; Redemption (2000)
Ambrosio died, leaving his three daughters, Belen, Rosario and
Sylvia a hacienda which was mortgaged to the Philippine
National Bank due to the failure of the daughters to pay the
bank, the latter foreclosed the mortgage and the hacienda was
sold to it as the highest bidder. Six months later, Sylvia won the
grand prize at the lotto and used part of it to redeem the
hacienda from the bank. Thereafter, she took possession of the
hacienda and refused to share its fruits with her sisters,
contending that it was owned exclusively by her, having bought
it from the bank with her own money. Is she correct
or not? (3%)
SUGGESTED ANSWER:
Sylvia is not correct. The 3 daughters are the co-owners of the
hacienda being the only heirs of Ambrosio. When the property
was foreclosed, the right of redemption belongs also to the 3
daughters. When Sylvia redeemed the entire property before
the lapse of the redemption period, she also exercised the right
of redemption of her co-owners on their behalf. As such she
is holding the shares of her two sisters in the property, and all
the fruits corresponding thereto, in trust for them.
Redemption by one co-owner inures to the benefit of all
(Adille v. CA.157 SCRA 455). Sylvia, however, is entitled to be
reimbursed the shares of her two sisters in the redemption
price.
Ownership; Co-Ownership; Redemption (2002)
Antonio, Bart, and Carlos are brothers. They purchased from
their parents specific portions of a parcel of land as evidenced
by three separates deeds of sale, each deed referring to a
particular lot in meter and bounds. When the deeds were
presented for registration, the Register of Deeds could not issue
separate certificates of Title had to be issued, therefore, in the
 Answers to the BAR as Arranged by Topics (Year 1990
names of three brothers as coowners of the entire property.
The situation has not changed up to now, but each of the
brothers has been receiving rentals exclusively from the lot
actually purchased by him. Antonio sells his lot to a third
person, with notice to his brothers. To enable the buyer to
secure a new title in
his name, the deed of sale was made to refer to undivided
interest in the property of the seller (Antonio), with the metes
and bounds of the lot sold being stated. Bart and Carlos
reacted by signifying their exercise of their right of
redemption as co owners. Antonio in his behalf and in behalf
of his buyer, contends that they are no longer coowners,
although the title covering the property has remained in their
names as such. May Bart and Carlos still redeem the lot sold
by Antonio? Explain. (5%)
SUGGESTED ANSWER:
No, they may not redeem because there was no Coownership
among Antonio, Bart, and Carlos to start with. Their parents
already partitioned the land in selling separate portions to them.
The situation is the same as in the case Si v. Court of Appeals,
(342 SCRA 653 [2000]).
Possession (1998)
Using a falsified manager's check, Justine, as the buyer, was able
to take delivery of a second hand car which she had just bought
from United Car Sales Inc. The sale was registered with the
Land Transportation Office. A week later, the seller learned
that the check had been dishonored, but by that time, Justine
was nowhere to be seen. It turned out that Justine had sold the
car to Jerico, the present possessor who knew nothing about
the falsified check. In a suit by United Car Sales, Inc. against
Jerico for recovery of the car, plaintiff alleges it had been
unlawfully deprived of its property through fraud and should,
consequently, be allowed to recover it without having to
reimburse the defendant for the price the latter had paid.
Should the suit prosper? [5%]
SUGGESTED ANSWER:
The suit should prosper as to the recovery of the car. However,
since Jerico was not guilty of any fraud and appears to be an
innocent purchaser for value, he should be reimbursed for the
price he paid. This is without prejudice to United Car Sales, Inc.
right of action against Justine. As between two innocent parties,
the party causing the injury should suffer the loss. Therefore,
United Car Sales, Inc.
should suffer the loss.
ALTERNATIVE ANSWER:
Yes, the suit will prosper because the criminal act of estafa
should be deemed to come within the meaning of unlawful
deprivation under Art. 559, Civil Code, as without it plaintiff
would not have parted with the possession of its car.
ANOTHER ANSWER:
No, the suit will not prosper. The sale is valid and Jerico is a
buyer in good faith.
ANOTHER ANSWER:
Under the law on Sales, when the thing sold is delivered by the
seller to the buyer without reservation of ownership, the
ownership is transferred to the buyer. Therefore in the suit of
United Car Sales, Inc. against Jerico for the recovery of the car,
the plaintiff should not be allowed to recover the car without
reimbursing the defendant for the price that the latter paid.
(EDCA Publishing and Distributing Corp. vs. Santos, 184 SCRA
614, April 26, 1990)
Salvador, a timber concessionaire, built on his lot a
Property; Real vs. Personal Property (1995)
warehouse where he processes and stores his timber for
shipment. Adjoining the warehouse is a furniture factory
owned by NARRAMIX of which Salvador is a majority
stockholder. NARRAMIX leased space in the warehouse where
it placed its furniture-making machinery.
1. How would you classify the furniture-making machinery
as property under the Civil Code? Explain. 2. Suppose the
lease contract between Salvador and NARRAMIX
stipulates that at the end of the lease the machinery shall
become the property of the lessor, will your answer be the
same? Explain.
SUGGESTED ANSWER:
1. The furniture-making machinery is movable property
because it was not installed by the owner of the tenement. To
become immovable under Art. 415 (5) of the NCC, the
machinery must be installed by the owner of the tenement.
ALTERNATIVE ANSWER:
It depends on the circumstances of the case. If the machinery
was attached in a fixed manner, in such a way that it cannot be
separated from the tenement without breaking the material or
causing deterioration thereof, it is immovable property [Art.
415 (3), NCC]. However, if the machinery can be transported
from place to place without impairment of the tenement to
which they were fixed, then it is movable property. [Art. 416
(4), NCC]
SUGGESTED ANSWER:
2. It is immovable property. When there is a provision
in the lease contract making the lessor, at the end of the lease,
owner of the machinery installed by the lessee, the said
machinery is considered to have been installed by the lessor
through the lessee who acted merely as his agent. Having been
installed by the owner of the tenement, the machinery became
immovable .under Art. 415 of the NCC. (Davao
Sawmill v. Castillo 61 Phil. 709)
Property; Real vs. Personal Property (1997)
Pedro is the registered owner of a parcel of land situated in
Malolos, Bulacan. In 1973, he mortgaged the land to the
Philippine National Bank (PNB) to secure a loan of
P100.000.00. For Pedro's failure to pay the loan, the PNB
foreclosed on the mortgage in 1980, and the land was sold at
public auction to PNB for being the highest bidder. PNB
secured title thereto in 1987.
In the meanwhile, Pedro, who was still in possession of the
land, constructed a warehouse on the property. In 1988, the
PNB sold the land to Pablo, the Deed of Sale was amended in
1989 to include the warehouse.
CIVILCIVIL
LAWLAW
Answers to the BAR as Arranged by Topics (Year 1990-2006)-2006)
If consulted, what would your legal advice be?
Pedro, claiming ownership of the warehouse, files a complaint
to annul the amended Deed of Sale before the Regional Trial
Court of Quezon City, where he resides, against both the PNB
and Pablo. The PNB filed a motion to dismiss the complaint
for improper venue contending that the warehouse is real
property under Article 415(1) of the Civil Code and therefore
the action should have instead been filed in Malolos, Bulacan.
Pedro claims otherwise. The question arose as to whether the
warehouse should be considered as real or as personal property.
SUGGESTED ANSWER:
The warehouse which is a construction adhered to the soil is an
immovable by nature under Art. 415 (1) and the proper venue
of any case to recover ownership of the same, which is what
the purpose of the complaint to annul the amended Deed of
Sale amounts to, should be the place where the property is
located, or the RTC of Bulacan.
ADDITIONAL ANSWERS:
1. Buildings are always immovable property, and even in
the instances where the parties to a contract seem to have dealt
with it separate and apart from the land on which it stood in no
wise does it change its character as immovable property. A building
is an immovable even if not erected by the owner of the land. The
only criterion is union or incorporation with the soil. (Ladera vs.
Hodges (CA) 48
O.G. 4374) (Reyes and Puno, Outline of Philippine Civil Law,
Vol. 2. p.7)
2. The warehouse built by Pedro on the mortgaged
property is real property within the context of Article 415 of
the New Civil Code, although it was built by Pedro after the
foreclosure sale without the knowledge and consent of the new
owner which makes him a builder in bad faith, this does not
alter the character of the warehouse as a real property by
incorporation. It is a structure which cannot be removed
without causing injury to the land. So, my advice to Pedro is to
file the case with the RTC of Bulacan, the situs of the property,
(Note: If the examinee does not mention that the structure was built by
a builder in bad faith, it should be given full credit).
Sower; Good Faith/ Bad Faith (2000)
Felix cultivated a parcel of land and planted it to sugar cane,
believing it to be his own. When the crop was eight months old,
and harvestable after two more months, a resurvey of the land
showed that it really belonged to Fred. What are the
options available to Fred? (2%)
SUGGESTED ANSWER:
As to the pending crops planted by Felix in good faith, Fred
has the option of allowing Felix to continue the cultivation and
to harvest the crops, or to continue the cultivation and harvest
the crops himself. In the latter option, however, Felix shall have
the right to a part of the expenses of cultivation and to a part
of the net harvest, both in proportion to the
time of possession. (Art. 545 NCC), ALTERNATIVE
ANSWER:
Since sugarcane is not a perennial crop. Felix is considered a
sower in good faith. Being so, Art. 448 applies. The options
available to Fred are: (a) to appropriate the crop after paying
Felix the indemnity under Art. 546, or (b) to require Felix to
pay rent.
latter vacate the premises and deliver the same to the
Usufruct (1997)
On 1 January 1980, Minerva, the owner of a building, granted
Petronila a usufruct over the property until 01 June 1998 when
Manuel, a son of Petronila, would have reached his 30th
birthday. Manuel, however, died on 1 June 1990 when he was
only 26 years old.
Minerva notified Petronila that the usufruct had been
extinguished by the death of Manuel and demanded that the
former. Petronila refused to vacate the place on the ground
that the usufruct in her favor would expire only on 1 June
1998 when Manuel would have reached his 30th birthday and
that the death of Manuel before his 30th birthday did not
extinguish the usufruct. Whose contention should be
accepted?
SUGGESTED ANSWER:
Petronila's contention is correct. Under Article 606 of the
Civil Code, a usufruct granted for the time that may elapse
before a third person reaches a certain age shall subsist for the
number of years specified even if the third person should die
unless there is an express stipulation in the contract that states
otherwise. In the case at bar, there is no express stipulation
that the consideration for the usufruct is the existence of
Petronila's son. Thus, the general rule and not the exception
should apply in this case.
ALTERNATIVE ANSWER:
This is a usufruct which is clearly intended for the benefit of
Manuel until he reaches 30 yrs. of age with Petronila serving
only as a conduit, holding the property in trust for his
benefit. The death of Manuel at the age of 26 therefore,
terminated the usufruct.
LAND TRANSFER &
DEEDS
Acquisition of Lands; Citizenship Requirement
(2003)
In 1970, the spouses Juan and Juana de la Cruz, then
Filipinos, bought the parcel of unregistered land in the
Philippines on which they built a house which became their
residence. In 1986, they migrated to Canada and became
Canadian citizens. Thereafter, in 1990, they applied, opposed
by the Republic, for the registration of the aforesaid land in
their names. Should the application of the spouses de la Cruz
be granted over the Republics opposition? Why? 5%
SUGGESTED ANSWER:
Yes, the application should be granted. As a rule, the
Constitution prohibits aliens from owning private lands in the
Philippines. This rule, however, does not apply to the spouses
Juan and Juana de la Cruz because at the time they acquired
ownership over the land, albeit imperfect, they were still
Filipino citizens. The application for registration is a mere
confirmation of the imperfect title which the spouses have
already acquired before they became Canadian citizens.
(Republic v. CA, 235 SCRA 567 [1994]).
 Answers to the BAR as Arranged by Topics (Year 1990
Adverse Claims; Notice of Levy (1998)
Section 70 of Presidential Decree No. 1529, concerning
adverse claims on registered land, provides a 30-day period of
effectivity of an adverse claim, counted from the date of its
registration. Suppose a notice of adverse claim based upon a
contract to sell was registered on March 1, 1997 at the
instance of the BUYER, but on June 1, 1997, or after the
lapse of the 30-day period, a notice of levy on execution in
favor of a JUDGMENT CREDITOR was also registered to
enforce a final judgment for money against the registered
owner. Then, on June 15, 1997 there having been no formal
to the seller-owner the agreed purchase price in full and
cancellation of his notice of adverse claim, the BUYER pays
registers the corresponding deed of sale. Because the
annotation of the notice of levy is carried over to the new title
in his name, the BUYER brings an action against the
JUDGMENT CREDITOR to cancel such annotation, but the
latter claims that his lien is superior because it was annotated
after the adverse claim of the BUYER had ipso facto ceased
to be effective. Will the suit prosper? [5%]
SUGGESTED ANSWER:
The suit will prosper. While an adverse claim duly annotated at
the back of a title under Section 7O of P.D. 1529 is good only
for 30 days, cancellation thereof is still necessary to render it
ineffective, otherwise, the inscription thereof will remain
annotated as a lien on the property. While the life of adverse
claim is 3O days under P.D. 1529, it continuous to be effective
until it is canceled by formal petition filed with the Register of
Deeds.
The cancellation of the notice of levy is justified under Section
108 of P.D. 1529 considering that the levy on execution can not
be enforced against the buyer whose adverse claim against the
registered owner was recorded ahead of the notice of levy on
execution.
Annotation of Lis Pendens; When Proper (2001)
Mario sold his house and lot to Carmen for P1 million payable
in five (5) equal annual installments. The sale was registered and
title was issued in Carmen's name. Carmen failed to pay the last
three installments and Mario filed an. action for collection,
damages and attorneys fees against her. Upon filing of the
complaint, he caused a notice of lis pendens to be annotated on
Carmen's title. Is the notice of lis pendens proper or not? Why?
(5%) SUGGESTED ANSWER:
The notice of lis pendens is not proper for the reason that the
case filed by Mario against Carmen is only for collection,
damages, and attorney's fees.
Annotation of a lis pendens can only be done in cases involving
recovery of possession of real property, or to quiet title or to
remove cloud thereon, or for partition or any other proceeding
affecting title to the land or the use or occupation thereof. The
action filed by Mario does not fall on anyone of these.
Foreshore Lands (2000)
Regina has been leasing foreshore land from the Bureau of
Fisheries and Aquatic Resources for the past 15 years. Recently,
she learned that Jorge was able to obtain a free patent from the
Bureau of Agriculture, covering the same land, on the basis of
a certification by the District Forester that the same is already
"alienable and disposable". Moreover, Jorge had already
registered the patent with the Register of Deeds of the
province, and he was issued an Original Certificate of Title for
the same. Regina filed an action for annulment of Jorge's title
on the ground that it was obtained fraudulently. Will the action
prosper? (2%)
SUGGESTED ANSWER:
An action for the annulment of Jorge's Original Certificate of
Title will prosper on the following grounds:
residential, commercial, industrial, or similar productive
(1) Under Chapter IX of C .A, No. 141, otherwise
known as the Public Land Act, foreshore lands are disposable
for purposes, and only by lease when not needed by the
government for public service.
(2) If the land is suited or actually used for fishpond or
aquaculture purposes, it comes under the Jurisdiction of the
Bureau of Fisheries and Aquatic Resources (BFAR) and can
only be acquired by lease. (P.D. 705)
(3) Free Patent is a mode of concession under Section
41, Chapter VII of the Public Land Act, which is applicable
only for agricultural lands.
(4) The certificate of the district forester that the land is
already "alienable and disposable" simply means that the land
is no longer needed for forest purposes, but the Bureau of
Lands could no longer dispose of it by free patent because it is
already covered by a lease contract between BFAR and
Regina. That contract must be respected.
(5) The free patent of Jorge is highly irregular and void
ab initio, not only because the Bureau has no statutory
authority to issue a free patent over a foreshore area, but also
because of the false statements made in his sworn application
that he has occupied and cultivated the land since July 4, 1945,
as required by the free patent law. Under Section 91 of the
Public Land Act, any patent concession or title obtained thru
false representation is void ab initio. In cases of this nature, it
is the government that shall institute annulment proceedings
considering that the suit carries with it a prayer for the
reversion of the land to the state. However, Regina is a party
in interest and the case will prosper because she has a lease
contract for the same land with the government.
Forgery; Innocent Purchaser; Holder in Bad Faith
(2005)
Rod, the owner of an FX taxi, found in his vehicle an envelope
containing TCT No. 65432 over a lot registered in Cesar's
name. Posing as Cesar, Rod forged Cesar's signature on a Deed
of Sale in Rod's favor. Rod registered the said document with
the Register of Deeds, and obtained a new title in his name.
After a year, he sold the lot to Don, a buyer in good faith and
for value, who also registered the lot in his name.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
a) Did Rod acquire title to the land? Explain. (2%)
SUGGESTED ANSWER:
No, Rod did not acquire title to the land. The inscription in the
registry, to be effective, must be made in good faith. The
defense of indefeasibility of a Torrens Title does not extend to
a transferee who takes the certificate of title with notice of a
flaw. A holder in bad faith of a certificate of title is not entitled
to the protection of the law, for the law cannot be used as a
shield for frauds. (Samonte v. Court of Appeals, G.R. No. 104223,
July 12, 2001)

In the case at bar, Rod only forged Cesar's signature on the -

Deed of Sale. It is very apparent that there was bad faith on
the part of Rod from the very beginning. As such, he is not
entitled to the protection of the Land Registration Act.
b) Discuss the rights of Don, if any, over the property.
(2%) SUGGESTED
ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990
It is a well-known rule in this jurisdiction that persons
dealing with registered land have the legal right to rely on the
face of the Torrens Certificate of Title and to dispense with
the need to inquire further, except when the party concerned
has actual knowledge of facts and circumstances that would
impel a reasonably cautious man to make such inquiry.
(Naawan Community Rural Bank v. Court of Appeals, G.R. No.
128573, January 13, 2003)
In the given problem, the property was already registered in
the name of Rod when he bought the same from the latter.
Thus, Don could be considered as a buyer in good faith and
for value. However, since Rod did not actually sell any
property to him, Don has no right to retain ownership over
the property. He has only the right to recover the purchase
price plus damages.
Forgery; Innocent Purchaser; Mirror Principle
(1991)
Bruce is the registered owner, of a parcel of land with a
building thereon and is in peaceful possession thereof. He
pays the real estate taxes and collects the rentals therefrom.
Later, Catalino, the only brother of Bruce, filed a petition
where he, misrepresenting to be the attorney-in-fact of Bruce
and falsely alleging that the certificate of title was lost,
succeeded in obtaining a second owner's duplicate copy of the
title and then had the same transferred in his name through a
simulated deed of sale in his favor. Catalino then mortgaged
the property to Desiderio who had the mortgage annotated
on the title. Upon learning of the fraudulent transaction,
Bruce filed a complaint against Catalino and Desiderio to
have the title of Catalino and the mortgage in favor of
Desiderio declared null and void. Will the complaint prosper,
or will the title of Catalino and the mortgage to
Desiderio be sustained? SUGGESTED
ANSWER:
The complaint for the annulment of Catalino's Title will
prosper. In the first place, the second owner's copy of the title
secured by him from the Land Registration Court is void ab
initio, the owner's copy thereof having never been lost, let
alone the fact that said second owner's copy of the title was
fraudulently procured and improvidently issued by the Court.
In the second place, the Transfer Certificate of Title procured
by Catalino is equally null and void, it having been issued on
the basis of a simulated or forged Deed of Sale. A forged deed
is an absolute nullity and conveys no title. The mortgage in
favor of Desiderio is likewise null and void because the
mortgagor is not the owner of the mortgaged property. While
it may be true that under the "Mirror Principle" of the Torrens
System of Land Registration, a buyer or mortgagee has the
right to rely on what appears on the Certificate of Title, and in
the absence of anything to excite suspicion, is under no
obligation to look beyond the certificate and investigate the
mortgagor's title, this rule does not find application in the case
at hand because here. Catalino's title suffers from two fatal
infirmities, namely: a) The fact that it emanated from a forged
deed of a
simulated sale; b) The fact that it was derived from a
fraudulently procured or improvidently issued second
-2006)
owner's copy, the real owner's copy being still intact and in
the possession of the true owner, Bruce.
The mortgage to Desiderio should be cancelled without
prejudice to his right to go after Catalino and/or the
government for compensation from the assurance fund.
Fraud; Procurement of Patent; Effect (2000)
In 1979, Nestor applied for and was granted a Free Patent over
a parcel of agricultural land with an area of 30 hectares, located
in General Santos City. He presented the Free Patent to the
Register of Deeds, and he was issued a corresponding Original
Certificate of Title (OCT) No. 375, Subsequently, Nestor sold
the land to Eddie. The deed of sale was submitted to the
Register of Deeds and on the basis thereof, OCT No, 375 was
cancelled and Transfer Certificate of Title (TCT) No. 4576 was
issued in the name of Eddie. In 1986, the Director of Lands
filed a complaint for annulment of OCT No, 375 and TCT No.
4576 on the ground that Nestor obtained the Free Patent
through fraud. Eddie filed a motion to dismiss on the ground
that he was an innocent purchaser for value and in good faith
and as such, he has acquired a title to the property which is
valid, unassailable and indefeasible.
Decide the motion. (5%) SUGGESTED
ANSWER:
The motion of Nestor to dismiss the complaint for annulment
of O.C.T. No. 375 and T.C.T. No. 4576 should be denied for
the following reasons: 1) Eddie cannot claim protection as an
innocent purchaser for value nor can he interpose the defense
of indefeasibility of his title, because his TCT is rooted on a
void title. Under Section 91 of CA No. 141, as amended,
otherwise known as the Public Land Act, statements of
material facts in the applications for public land must be under
oath. Section 91 of the same act provides that such statements
shall be considered as essential conditions and parts of the
concession, title, or permit issued, any false statement therein,
or omission of facts shall ipso facto produce the cancellation
of the concession. The patent issued to Nestor in this case is
void ab initio not only because it was obtained by fraud but also
because it covers 30 hectares which is far beyond the maximum
of 24 hectares provided by the free patent law.
2) The government can seek annulment of the original and
transfer certificates of title and the reversion of the land to the
state. Eddie's defense is untenable. The protection afforded by
the Torrens System to an innocent purchaser for value can be
availed of only if the land has been titled thru judicial
proceedings where the issue of fraud becomes academic after
the lapse of one (1) year from the issuance of the decree of
registration. In public land grants, the action of the government
to annul a title fraudulently obtained does not prescribe such
action and will not be barred by the transfer of the title to an
innocent purchaser for value.
Homestead Patents; Void Sale (1999)
In 1950, the Bureau of Lands issued a Homestead patent to
A. Three years later, A sold the homestead to B. A died in
1990, and his heirs filed an action to recover the homestead
from B on the ground that its sale by their father to the latter
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
is void under Section 118 of the Public Land Law. B contends,
however, that the heirs of A cannot recover the
Page 71 of 119
homestead from him anymore because their action has
prescribed and that furthermore, A was in pari delicto.
Decide. (5%)
SUGGESTED ANSWER:
The sale of the land by A to B 3 years after issuance of the
homestead patent, being in violation of Section 118 of the
Public Land Act, is void from its inception.
The action filed by the heirs of B to declare the nullity or
inexistence of the contract and to recover the land should be
given due course.
B's defense of prescription is untenable because an action
which seeks to declare the nullity or inexistence of A contract
does not prescribe. (Article 1410; Banaga vs. Soler, 2 8CRA 765)
On the other hand, B's defense of pari delicto is equally
untenable. While as a rule, parties who are in pari delicto have
no recourse against each other on the principle that a
transgressor cannot profit from his own wrongdoing, such rule
does not apply to violations of Section 118 of the Public Land
Act because of the underlying public policy in the said Act "to
conserve the land which a homesteader has acquired by gratuitous grant
from the government for himself and his family". In keeping with this
policy, it has been held that one who purchases a homestead
within the five-year prohibitory period can only recover the
price which he has paid by filing a claim against the estate of
the deceased seller (Labrador vs. Delos Santos 66 Phil. 579)
under the principle that no one shall enrich himself at the
expense of another. Applying the pari delicto rule to violation of
Section 118 of the Public Land Act, the Court of Appeals has
ruled that "the homesteader suffers the loss of the fruits
realized by the vendee who in turn forfeits the improvement
that he has introduced into the land." (Obot vs.
SandadiUas, 69 OG, April 35, 1966} FIRST
ALTERNATIVE ANSWER:
The action to declare the nullity of the sale did not prescribe
(Art. 1410}, such sale being one expressly prohibited and
declared void by the Public Lands Act [Art. 1409, par. (7)]. The
prohibition of the law is clearly for the protection of the heirs
of A such that their recovering the property would enhance the
public policy regarding ownership of lands acquired by
homestead patent (Art. 1416). The defense of pari delicto is not
applicable either, since the law itself allows the homesteader to
reacquire the land even if it has been sold.
SECOND ALTERNATIVE ANSWER:
Prescription does not arise with respect to actions to declare a
void contract a nullity (Article 1410). Neither is the doctrine of
pari delicto applicable because of public policy. The law is
designed for the protection of the plaintiff so as to enhance the
public policy of the Public Land Act to give land to the landless.
If the heirs are not allowed to recover, it could be on the
ground of laches inasmuch as 40 years had elapsed and the
owner had not brought any action against B especially if the
latter had improved the land. It would be detrimental to B if
the plaintiff is allowed to recover.
Innocent Purchaser for Value (2001)
Cesar bought a residential condominium unit from High
Rise Co. and paid the price in full. He moved into the unit, but
somehow he was not given the Condominium Certificate of
Title covering the property. Unknown to him, High Rise Co.
subsequently mortgaged the entire condominium building to
Metrobank as security for a loan of P500 million. High Rise Co.
failed to pay the loan and the bank foreclosed the mortgage. At
the foreclosure sale, the bank acquired the building, being the
highest bidder. When Cesar learned about this, he filed an
action to annul the foreclosure sale insofar as his unit was
concerned. The bank put up the defense that it relied on the
condominium certificates of title presented by High Rise Co.,
which were clean. Hence, it was a mortgagee and buyer in good
faith. Is this defense tenable or not? Why?
(5%.)
SUGGESTED ANSWER:
Metrobank's defense is untenable. As a rule, an innocent
purchaser for value acquires a good and a clean title to the
property. However, it is settled that one who closes his eyes to
facts that should put a reasonable man on guard is not an
innocent purchaser for value. In the present problem the bank
is expected, as a matter of standard operating procedure, to
have conducted an ocular inspection, of the promises before
granting any loan. Apparently, Metrobank did not follow this
procedure. Otherwise, it should have discovered that the
condominium unit in question was occupied by Cesar and that
fact should have led it to make further inquiry. Under the
circumstances, Metrobank cannot be considered a mortgagee
and buyer in good faith.
Mirror Principle (1990)
In 1950's, the Government acquired a big landed estate in
Central Luzon from the registered owner for subdivision into
small farms and redistribution of bonafide occupants, F was a
former lessee of a parcel of land, five hectares in area. After
completion of the resurvey and subdivision, F applied to buy
the said land in accordance with the guidelines of the
implementing agency. Upon full payment of the price in 1957,
the corresponding deed of absolute sale was executed in his
favor and was registered, and in 1961, a new title was issued in
his name. In 1963, F sold the said land to X; and in 1965 X sold
it to Y, new titles were successively issued in the names of the
said purchasers.
In 1977, C filed an action to annul the deeds of sale to F, X and
Y and their titles, on the ground that he (C) had been in actual
physical possession of the land, and that the sale to F and the
subsequent sales should be set aside on the ground of fraud.
Upon motion of defendants, the trial court dismissed the
complaint, upholding their defenses of their being innocent
purchasers for value, prescription and laches. Plaintiff
appealed.
(a) Is the said appeal meritorious? Explain your (answer
b) Suppose the government agency concerned joined C in
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

filing the said action against the defendants, would that The action of X and Y against B for reconveyance of the land
change the result of the litigation? Explain. will not prosper because B has acquired a clean title to the
SUGGESTED ANSWER: property being an innocent purchaser for value.
(a) The appeal is not meritorious. The trial court ruled correctly
in granting defendant's motion to dismiss for the following A forged deed is an absolute nullity and conveys no title. The
reasons: fact that the forged deed was registered and a certificate of
1. While there is the possibility that F, a former lessee of the title was issued in his name, did not operate to vest upon an
land was aware of the fact that C was the bona fide ownership over the property of X and Y. The registration of
occupant thereof and for this reason his
transfer certificate required to explore beyond what the record in the registry of title may be vulnerable, the transfer of the same
land and indicates on its face in quest for any hidden defect or the issuance of new TCTs to X and Y who are innocent inchoate
right which may subsequently defeat his right purchasers for value render the latter's titles indefeasible. A thereto. This is the
"mirror principle' of the Torrens system person dealing with registered land may safely rely on the which makes it possible for
a forged deed to be the root of a correctness of the certificate of title and the law will not in good title.
any way oblige him to go behind the certificate to determine
the condition of the property in search for any hidden defect Besides, it appears that spouses X and Y are guilty of or inchoate
right which may later invalidate or diminish the contributory negligence when they delivered this OCT to the right to the land.
This is the mirror principle of the Torrens mortgagee without annotating the mortgage thereon.
System of land registration. Between them and the innocent purchaser for value, they
should bear the loss.
1. The action to annul the sale was instituted in 1977 or more ALTERNATIVE ANSWER:
than (10) years from the date of execution thereof in 1957, If the buyer B, who relied on the teller A's title, was not
hence, it has long prescribed. aware of the adverse possession of the land by the spouses X
2. Under Sec 45 of Act 496, the entry of a certificate of title and Y, then the latter cannot recover the property from shall
be regarded as an agreement running with the land, and B. B has in his favor the presumption of good faith which
binding upon the applicant and all his successors in title that can only be overthrown by adequate proof of bad faith. the
land shall be and always remain registered land. A title However, nobody buys land without seeing the property,
under Act 496 is indefeasible and to preserve that character, the hence, B could not have been unaware of such adverse
title is cleansed anew with every transfer for value (De Jesus v possession. If after learning of such possession, B simply
City of Manila; 29 Phil. 73; Laperal v City of Manila, 62 Phil 313; closed his eyes and did nothing about it, then the suit for
Penullar v PNB 120 S 111). the forged deed will not cure the infirmity. However, once the
title to the land is registered in the name of the forger and title
to the land thereafter falls into the hands of an innocent
SUGGESTED ANSWER: purchaser for value, the latter acquires a clean title thereto. A
(b) Even if the government joins C, this will not alter the buyer of a registered land is not
outcome of the case so much because of estoppel as an express reconveyance will prosper as the buyer's bad faith will have
provision in Sec 45 of Act 496 and Sec 31 of PD 1529 that a become evident.
decree of registration and the certificate of title issued in
pursuance thereof shall be conclusive upon and against all Notice of Lis Pendens (1995)
persons, including the national government and all branches Rommel was issued a certificate of title over a parcel of land
thereof, whether mentioned by name in the application or in Quezon City. One year later Rachelle, the legitimate owner
not. of the land, discovered the fraudulent registration obtained by
Rommel. She filed a complaint against Rommel for
Mirror Principle; Forgery; Innocent Purchaser reconveyance and caused the annotation of a notice of lis
(1999) pendens on the certificate of title issued to Rommel. Rommel
The spouses X and Y mortgaged a piece of registered land to now invokes the indefeasibility of his title considering that
A, delivering as well the OCT to the latter, but they continued one year has already elapsed from its issuance. He also seeks
to possess and cultivate the land, giving 1/2 of each harvest to the cancellation of the notice of Lis pendens. May the court
A in partial payment of their loan to the latter, A, however, cancel the notice of lis pendens even before final judgment is
without the knowledge of X and Y, forged a deed of sale of the rendered? Explain.
aforesaid land in favor of himself, got a TCT in his name, and
then sold the land to B, who bought the land relying on A's SUGGESTED ANSWER:
title, and who thereafter also got a TCT in his name. It was only A Notice of Lis Pendens may be canceled even before final
then that the spouses X and Y learned that their land had been Judgment upon proper showing that the notice is for the
titled in B's name. May said spouses file an action for purpose of molesting or harassing the adverse party or that
reconveyance of the land in question against b? Reason. (5%) the notice of lis pendens is not necessary to protect the right
SUGGESTED ANSWER: of the party who caused it to be registered. (Section 77,
P.D. No. 1529)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
In this case, it is given that Rachelle is the legitimate owner of
the land in question. It can be said, therefore, that when she
filed her notice of lis pendens her purpose was to protect her
interest in the land and not just to molest Rommel. It is
necessary to record the Lis pendens to protect her interest
because if she did not do it, there is a possibility that the land
will fall into the hands of an innocent purchaser for value and
in that event, the court loses control over the land making any
favorable judgment thereon moot and academic. For these
reasons, the notice of lis pendens may not be canceled.
Notice of Lis Pendens; Transferee Pendente Lite
(2002)
Sancho and Pacifico are co-owners of a parcel of land.
Sancho sold the property to Bart. Pacifico sued Sancho and
Bart for annulment of the sale and reconveyance of the
property based on the fact that the sale included his one-
half pro-indiviso share. Pacifico had a notice of lis pendens
annotated on the title covering the property and ordered the
cancellation of the notice of lis pendens. The notice of lis
pendens could not be cancelled immediately because the title
over the property was with a bank to which the property had
been mortgaged by Bart. Pacifico appealed the case. While the
appeal was pending and with the notice of lis pendens still
uncancelled, Bart sold the property to Carlos, who
immediately caused the cancellation of the notice of lis
pendens, as well as the issuance of a new title in his name. Is
Carlos (a) a purchaser in good faith, or (b) a transferee
pendente lite? If your answer is (a), how can the right of
Pacifico as co-owner be protected? Explain. (5%)
SUGGESTED ANSWER:
A. Carlos is a buyer in bad faith. The notice of lis
pendens was still annotated at the back of the title at the time
he bought the land from Bart. The uncancelled notice of lis
pendens operates as constructive notice of its contents as well
as interests, legal or equitable, included therein. All persons
are charged with the knowledge of what it contains. In an
earlier case, it was held that a notice of an adverse claim
remains effective and binding notwithstanding the lapse of the
30 days from its inscription in the registry. This ruling is even
more applicable in a lis pendens.
Carlos is a transferee pendente lite insofar as Sanchos share in
the co-ownership in the land is concerned because the land
was transferred to him during the pendency of the appeal.
B. Pacifico can protect his right as a co-owner by
pursuing his appeal; asking the Court of Appeals to order the
re-annotation of the lis pendens on the title of Carlos; and by
invoking his right of redemption of Barts share under
Articles 1620 of the New Civil Code. ALTERNATIVE
ANSWER:
A. Carlos is a purchaser in good faith. A possessor in
good faith has been defined as one who is unaware that
there exists a flaw which invalidates his acquisition of the
thing (Art. 526, NCC). Good faith consists in the
possessors belief that the person from whom he received the
thing was the owner of the same and could convey his title. In
the case [at bar], in question, while Carlos bought the subject
property from Bart while a notice of lis pendens was still
annotated thereon, there was also an existing court order
canceling the same. Hence, Carlos cannot be considered as
being aware of a flaw which invalidates [their] the
acquisition of the thing since the alleged flaw, the notice of
lis pendens, was already being ordered cancelled at the time of
the purchase. On this ground alone, Carlos can already be
considered a buyer in good faith. (Po Lam v. Court of
Appeals, 347 SCRA 86, [2000]).
B. To protect his right over the subject property,
Pacifico should have timely filed an action for reconveyance
and reinstated the notice of lis pendens.
Prescription & Laches; Elements of Laches (2000)
the obligation. However, the action was brought within the
In an action brought to collect a sum of money based on a
surety agreement, the defense of laches was raised as the claim
was filed more than seven years from the maturity of ten-year
prescriptive period provided by law wherein actions based on
written contracts can be instituted. a) Will the defense
prosper? Reason. (3%) b) What are the essential
elements of laches? (2%) SUGGESTED
ANSWER:
No, the defense will not prosper. The problem did not give
facts from which laches may be inferred. Mere delay in filing
an action, standing alone, does not constitute laches (Agra v.
PNB. 309 SCRA 509). SUGGESTED
ANSWER:
b) The four basic elements of laches are; (1) conduct on the
part of the defendant or of one under whom he claims, giving
rise to the situation of which complainant seeks a remedy; (2)
delay in asserting the complainant's rights, the complainant
having had knowledge or notice of the defendant's conduct and
having been afforded an opportunity to institute suit; (3) lack
of knowledge on the part of the defendant that the complainant
would assert the right on which he bases his suit; and (4) injury
or prejudice to the defendant in the event relief is accorded to
the complainant, or the suit is not held to be barred.
Prescription & Laches; Indefeasibility Rule of
Torrens Title (2002)
Way back in 1948, Windas husband sold in favor of Verde
Sports Center Corp. (Verde) a 10-hectare property belonging
to their conjugal partnership. The sale was made without
Windas knowledge, much less consent. In 1950, Winda learned
of the sale, when she discovered the deed of sale among the
documents in her husbands vault after his demise. Soon after,
she noticed that the construction of the sports complex had
started. Upon completion of the construction in 1952, she tried
but failed to get free membership privileges in Verde.
Winda now files a suit against Verde for the annulment of the
sale on the ground that she did not consent to the sale. In
answer, Verde contends that, in accordance with the Spanish
Civil Code which was then in force, the sale in 1948 of the
property did not need her concurrence. Verde contends that in
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
any case the action has prescribed or is barred by laches. Winda
rejoins that her Torrens title covering the property is
indefeasible, and imprescriptible.
A. Define or explain the term laches . (2%)
B. Decide the case, stating your reasons for your decision.
(3%)
SUGGESTED ANSWER:
A. LACHES means failure or neglect, for an
unreasonable and unexplained length of time, to do what, by
exercising due diligence, could or should have been done
earlier. It is negligence or omission to assert a right within a
reasonable time. (De Vera v. CA, 305 SCRA 624 [1999])
B. While Article 1413 of the Spanish Civil Code did not
require the consent of the wife for the validity of the sale, an
alienation by the husband in fraud of the wife is void as held in
Uy Coque v. Navas, 45 Phil. 430 (1923). Assuming that the
alienation in 1948 was in fraud of Winda and, therefore, makes
the sale to Verde void, the action to set aside the sale,
nonetheless, is already barred by
prescription and laches. More than 52 years have already
elapsed from her discovery of the sale in 1950.
ALTERNATIVE ANSWER:
B. Windas claim that her Torrens Title covering the property
is indefeasible and imprescriptible [does not hold water] is not
tenable. The rule of indefeasibility of a Torrens Title means
that after one year from the date of issue of the decree of
registration or if the land has fallen into the hands of an
innocent purchaser for value, the title becomes incontestable
and incontrovertible.
IMPRESCRIPTIBILITY, on the other hand, means that no
title to the land in derogation of that of the registered owner
may be acquired by adverse possession or acquisitive
prescription or that the registered owner does not lose by
extinctive prescription his right to recover ownership and
possession of the land.
The action in this case is for annulment of the sale executed by
the husband over a conjugal partnership property covered by a
Torrens Title. Action on contracts are subject to
prescription.
Prescription (1990)
In 1960, an unregistered parcel of land was mortgaged by
owner O to M, a family friend, as collateral for a loan. O acted
through his attorney-in-fact, son S, who was duly authorized by
way of a special power of attorney, wherein O declared that he
was the absolute owner of the land, that the tax
declarations/receipts were all issued in his name, and that he
has been in open, continuous and adverse possession in the
concept of owner.
As O was unable to pay back the loan plus interest for the past
five [5) years, M had to foreclose the mortgage. At the
foreclosure sale, M was the highest bidder. Upon issuance of
the sheriffs final deed of sale and registration in January, 1966,
the mortgage property was turned over to M's possession and
control M has since then developed the said property. In 1967,
O died, survived by sons S and P.
In 1977, after the tenth (10th) death anniversary of his father
O. son P filed a suit to annul the mortgage deed and subsequent
sale of the property, etc., on the ground of fraud. He asserted
that the property in question was conjugal in nature actually
belonging, at the time of the mortgage, to O and his wife, W,
whose conjugal share went to their sons (S and P) and to O.
(a) Is the suit filed by P barred by prescription? Explain
your answer.
(b) After the issuance of the sheriff's final deed of sale in
1966 in this case, assuming that M applied for registration
under the Torrens System and was issued a Torrens Title to
the said property in question, would that added fact have any
significant effect on your conclusion? State your reason.
SUGGESTED ANSWER:
(a) Under Art. 173 of the Civil Code, the action is barred by
prescription because the wife had only ten (10) years from
the transaction and during the marriage to file a suit for the
annulment of the mortgage deed. Alternative Answers to (a)
first Alternative Answer:
(a) The mortgage contract executed by O, if at all, is only a
voidable contract since it involves a conjugal partnership
property. The action to annul the same instituted in 1977, or
eleven years after the execution of the sheriff's final sale, has
obviously prescribed because: 1) An action to annul a contract
on the ground of fraud
must be brought within four (4) years from the date of
discovery of the fraud. Since this is in essence an action to
recover ownership, it must be reckoned from the date of
execution of the contract or from the registration of the
alleged fraudulent document with the assessor's office for
the purpose of transferring the tax declaration, this being
unregistered land, (Bael u. Intermediate Appellate Court G.
R. L-74423 Jan.30, 1989 169 SCRA 617).
2) If the action is to be treated as an action to recover
ownership of land, it would have prescribed just the same
because more than 10 years have already elapsed since the date
of the execution of the sale.
SECOND ALTERNATIVE ANSWER:
(a) The action to recover has been barred by acquisitive
prescription in favor of M considering that M has possessed
the land under a claim of ownership for ten (10) years with a
just title.
(b) If M had secured a Torrens Title to the land, all the
more S and P could not recover because if at all their
remedies would be:
1. A Petition to Review the Decree of Registration.
This can be availed of within one (1) year from-the entry
thereof, but only upon the basis of "actual fraud." There is no
showing that M committed actual fraud in securing his title to
the land; or
2. An action in personam against M for the
reconveyance of the title in their favor. Again, this remedy is
available within four years from the date of the discovery of
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
the fraud but not later than ten (10) years from the date of
registration of the title in the name of M.
Prescription; Real Rights (1992)
A owned a parcel of unregistered land located on the Tarlac
side of the boundary between Tarlac and Pangasinan. His
brother B owned the adjoining parcel of unregistered land on
the Pangasinan side.
A sold the Tarlac parcel to X in a deed of sale executed as a
public instrument by A and X. After X paid in full the, price
of the sale, X took possession of the Pangasinan parcel in the
belief that it was the Tarlac parcel covered by the deed of sale
executed by A and X.
After twelve (12) years, a controversy arose between B and X
on the issue of the ownership of the Pangasinan parcel, B
claims a vested right of ownership over the Pangasinan parcel
because B never sold that parcel to X or to anyone else.
On the other hand, X claims a vested right of ownership over
the Pangasinan parcel by acquisitive prescription, because X
possessed this parcel for over ten (10] years under claim of
ownership.
Decide on these claims, giving your reasons.
SUGGESTED ANSWER:
At this point in time, X cannot claim the right of vested
ownership over the Pangasinan parcel by acquisitive
prescription. In addition to the requisites common to ordinary
and extraordinary acquisitive prescription consisting of
uninterrupted, peaceful, public, adverse and actual possession
in the concept of owner, ordinary acquisitive prescription for
ten (10) years requires (1) possession in good faith and (2) just
title. "Just title" means that the adverse claimant came into
possession of the property through one of the modes
recognized by law for the acquisition of ownership but the
grantor was not the owner or could not transmit any right (Art.
1129. Civil Code). In this case, there is no "just title" and no
"mode" that can be invoked by X for the acquisition of the
Pangasinan parcel. There was no constructive delivery of the
Pangasinan parcel because it was not the subject-matter of the
deed of sale. Hence, B retains ownership of the Pangasinan
parcel of land.
Primary Entry Book; Acquisitive Prescription;
Laches (1998)
In 1965, Renren bought from Robyn a parcel of registered
land evidenced by a duly executed deed of sale. The owner
presented the deed of sale and the owner's certificate of title
to the Register of Deeds. The entry was made in the daybook
and corresponding fees were paid as evidenced by official
receipt. However, no transfer of certificate of title was issued
to Renren because the original certificate of title in Robyn's
name was temporarily misplaced after fire partly gutted the
Office of the Register of Deeds. Meanwhile, the land had been
possessed by Robyn's distant cousin, Mikaelo, openly,
adversely and continuously in the concept of owner since
1960. It was only in April 1998 that Renren sued Mikaelo to
recover possession. Mikaelo invoked a) acquisitive
prescription and b) laches, asking that he be declared owner
of the land. Decide the case by evaluating these defenses,
[5%]
SUGGESTED ANSWER:
a) Renren's action to recover possession of the land will
prosper. In 1965, after buying the land from Robyn, he
submitted the Deed of Sale to the Registry of Deeds for
registration together with the owner's duplicate copy of the
title, and paid the corresponding registration fees. Under
Section 56 of PD No. 1529, the Deed of Sale to Renren is
considered registered from the time the sale was entered in the
Day Book (now called the Primary Entry Book).
For all legal intents and purposes, Renren is considered the
registered owner of the land. After all, it was not his fault that
the Registry of Deeds could not issue the corresponding
transfer certificate of title.
Mikaelo's defense of prescription can not be sustained. A
Torrens title is imprescriptible. No title to registered land in
derogation of the title of the registered owner shall be
acquired by prescription or adverse possession. (Section 47,
The right to recover possession of registered land likewise
P.D. No, 1529)
does not prescribe because possession is just a necessary
incident of ownership.
SUGGESTED ANSWER:
b) Mikaelo's defense of laches, however, appears to be
more sustainable. Renren bought the land and had the sale
registered way back in 1965. From the facts, it appears that it
was only in 1998 or after an inexplicable delay of 33 years that
he took the first step asserting his right to the land. It was not
even an action to recover ownership but only possession of
the land. By ordinary standards, 33 years of neglect or inaction
is too long and maybe considered unreasonable. As often held
by the Supreme Court, the principle of imprescriptibility
sometimes has to yield to the equitable principle of laches
which can convert even a registered land owner's claim into a
stale demand.
Mikaelo's claim of laches, however, is weak insofar as the
element of equity is concerned, there being no showing in the
facts how he entered into the ownership and possession of the
land.
Reclamation of Foreshore Lands; Limitations
(2000)
Republic Act 1899 authorizes municipalities and chartered
cities to reclaim foreshore lands bordering them and to
construct thereon adequate docking and harbor facilities.
Pursuant thereto, the City of Cavite entered into an agreement
with the Fil-Estate Realty Company, authorizing the latter to
reclaim 300 hectares of land from the sea bordering the city,
with 30% of the land to be reclaimed to be owned by Fil-Estate
as compensation for its services. The Solicitor General
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
questioned the validity of the agreement on the ground that it
will mean reclaiming land under the sea which is beyond the
commerce of man. The City replies that this is authorized by
RA. 1899 because it authorizes the construction of docks and
harbors. Who is correct? (3%)
SUGGESTED ANSWER:
The Solicitor General is correct. The authority of the City of
Cavite under RA 1899 to reclaim land is limited to foreshore
lands. The Act did not authorize it to reclaim land from the sea.
"The reclamation being unauthorized, the City of Cavite did
not acquire ownership over the reclaimed land. Not being the
owner, it could not have conveyed any portion thereof to the
contractor.
ALTERNATIVE ANSWER:
It depends. If the reclamation of the land from the sea is
necessary in the construction of the docks and the harbors,
the City of Cavite is correct. Otherwise, it is not. Since RA
1899 authorized the city to construct docks and harbors, all
works that are necessary for such construction are deemed
authorized. Including the reclamation of land from the sea.
The reclamation being authorized, the city is the owner of the
reclaimed land and it may convey a portion thereof as payment
for the services of the contractor. ANOTHER ALTERNATIVE
ANSWER:
On the assumption that the reclamation contract was entered
into before RA 1899 was repealed by PD 3-A, the City of Cavite
is correct. Lands under the sea are "beyond the commerce of
man" in the sense that they are not susceptible of private
appropriation, ownership or
alienation. The contract in question merely calls for the
reclamation of 300 hectares of land within the coastal waters of
the city. Per se, it does not vest, alienate or transfer ownership
of land under the sea. The city merely engaged the services of
Fil-Estate to reclaim the land for the city.
Registration; Deed of Mortgage (1994)
How do you register now a deed of mortgage of a parcel of
land originally registered under the Spanish Mortgage Law?
SUGGESTED ANSWER:
a) After the Spanish Mortgage Law was abrogated by
P.D. 892 on February 16, 1976, all lands covered by Spanish
titles that were not brought under the Torrens system within
six 16] months from the date thereof have been considered as
"unregistered private lands."
Thus, a deed of mortgage affecting land originally registered
under the Spanish Mortgage Law is now governed by the
system of registration of transactions or instruments affecting
unregistered land under Section 194 of the Revised
Administrative Code as amended by Act No. 3344. Under this
law, the instrument or transaction affecting unregistered land is
entered in a book provided for the purpose but the registration
thereof is purely voluntary and does not adversely affect third
persons who have a better right.
b) By recording and registering with the Register of
Deeds of the place where the land is located, in accordance
with Act 3344. However, P.D. 892 required holders of
Spanish title to bring the same under the Torrens System
within 6 months from its effectivity on February 16, 1976.
Remedies; Judicial Confirmation; Imperfect Title
(1993)
On June 30, 1986, A filed in the RTC of Abra an application
for registration of title to a parcel of land under
P. D. No. 1529, claiming that since June 12, 1945, he has been
in open, continuous, exclusive and notorious possession and
occupation of said parcel of land of the public domain which
was alienable and disposable, under a bona fide claim of
ownership. After issuance of the notice of initial hearing and
publication, as required by law, the petition was heard on July
29, 1987. On the day of the hearing nobody but the applicant
appeared. Neither was there anyone who opposed the
application. Thereupon, on motion of the applicant, the RTC
issued an order of general default and allowed the applicant to
present his evidence. That he did. On September 30, 1989, the
RTC dismissed A's application for lack of sufficient evidence.
A appealed to the Court of Appeals.
The appellant urged that the RTC erred in dismissing his
application for registration and in not ordering registration of
his title to the parcel of land in question despite the fact that
there was no opposition filed by anybody to his application.
Did the RTC commit the error attributed to it?
SUGGESTED ANSWER:
No, the RTC did not commit the error attributed to it. In an
application for Judicial confirmation of imperfect or incomplete title
answer or show up on the date of initial hearing, does not
to public agricultural land under Section 48 of the Public Land Act,
the lack of opposition and the consequent order of default against
those who did not
guarantee the success of the application. It is still incumbent upon
the applicant to prove with well nigh incontrovertible evidence that
he has acquired a title to the land that is fit for registration. Absent
such registrable title, it is the clear duty of the Land Registration
Court to dismiss the application and declare the land as public
land.
An application for land registration is a proceeding in rem. Its
main objective is to establish the status of the res whether it is
still part of our public domain as presumed under the
Regalian doctrine or has acquired the character of a private
property. It is the duty of the applicant to overcome that
presumption with sufficient evidence.
Remedies; Judicial Reconstitution of Title (1996)
In 1989, the heirs of Gavino, who died on August 10, 1987,
filed a petition for reconstitution of his lost or destroyed
Torrens Title to a parcel of land in Ermita, Manila. This was
opposed by Marilou who claimed ownership of the said land
by a series of sales. She claimed that Gavino had sold the
property to Bernardo way back in 1941 and as evidence
thereof, she presented a Tax Declaration in 1948 in the name
of Bernardo, which cancelled the previous Tax Declaration in
the name of Gavino. Then she presented two deeds of sale
duly registered with the Register of Deeds, the first one
executed by Bernardo in 1954 selling the same property to
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

Carlos, and the second one executed by Carlos in 1963, selling

the same property to her. She also claimed that she and her
predecessors in interest have been in possession of the
property since 1948. If you were the judge, how will you
decide the petition? Explain.

SUGGESTED ANSWER:
If I were the judge, I will give due course to the petition of the
heirs of Gavino despite the opposition of Marilou for the
following reasons: a) Judicial reconstitution of a certificate of
title under RA.
No. 26 partakes of a land registration proceeding and is
perforce a proceeding in rem. It denotes restoration of an
existing instrument which has been lost or destroyed in
its original form and condition. The purpose of
reconstitution of title or any document is to have the
same reproduced, after proceedings. In the same form
they were when the loss or destruction occurred.
b) If the Court goes beyond that purpose, it acts
without or in excess of jurisdiction. Thus, where the Torrens
Title sought to be reconstituted is in the name of Gavino, the
court cannot receive evidence proving that Marilou is the
owner of the land. Marilou's dominical claim to the land
should be ventilated in a separate civil action before the
Regional Trial Court in its capacity as a court of general
jurisdiction.
REFERENCES: Heirs of Pedro Pinate vs. Dulay. 187 SCRA 12-20
(1990); Bunagan vs. CF1 Cebu Branch VI. 97 SCRA 72 (1980);
Republic vs. IAC. 157 SCRA 62,66 (1988); Margolles vs. CA, 230
SCRA 709; Republic us, Feliciano, 148 SCRA 924.

Remedies; Procedure; Consulta (1994)

What is the procedure of consulta when an instrument is
denied registration? SUGGESTED ANSWER:
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
1) The Register of Deeds shall notify the interested (a) An action for reconveyance against Huey is not the
party in writing, setting forth the defects of the instrument or proper remedy, because Huey is an innocent purchaser for
the legal ground relied upon for denying the registration, and value. The proper recourse is for Louie to go after Dewey for
advising that if he is not agreeable to such ruling, he may, damages by reason of the fraudulent registration and
without withdrawing the documents from the Registry, elevate subsequent sale of the land. If Dewey is insolvent, Louie may
the matter by Consulta to the Administrator of the Land file a claim against the Assurance Fund (Heirs of Pedro Lopez
Registration Authority (LRA). v. De
Castro 324 SCRA 591 [2000] citing Sps.
2) Within five {5) days from receipt of notice of denial, Eduarte v. CA, 323 Phil. 462, 467 [1996]).
the party-in-interest shall file his Consulta with the Register of
Deeds concerned and pay the consulta fee. (b) Yes, the remedy will prosper because the action
3) After receipt of the Consulta and payment of the prescribes in ten (10) years, not within one (1) year when a
corresponding fee the Register of Deeds makes an annotation petition for the reopening of the registration decree may be
of the pending consulta at the back of the certificate of title. filed. The action for reconveyance is distinct from the petition
to reopen the decree of registration (Grey Alba v. De la Cruz,
4) The Register of Deeds then elevates the case to the 17 Phil. 49 [1910}). There is no need to reopen the
LRA Administrator with certified records thereof and a registration proceedings, but the property should just be
summary of the facts and issues involved. reconveyed to the real owner.
5) The LRA Administrator then conducts hearings after
due notice or may just require parties to submit their The action for reconveyance is based on implied or constructive
memoranda. trust, which prescribes in ten (10) years from the date of issuance
6) After hearing, the LRA Administrator issues an order of the original certificate of title. This rule assumes that the
prescribing the step to be taken or the memorandum to be defendant is in possession of the land. Where it is the plaintiff
made. His resolution in consulta shall be conclusive and who is in possession of the land, the action for reconveyance
binding upon all Registers of Deeds unless reversed on appeal would be in the nature of a suit for quieting for the title which
by the Court of Appeals or by the Supreme Court. (Section action is imprescriptible (David
v. Malay, 318 SCRA 711 [1999]).
117, P.D. 1529).
Remedies; Reconveyance; Elements (1995)
The procedure of consulta is a mode of appeal from denial Rommel was issued a certificate of title over a parcel of
land by the Register of Deeds of the registration of the instrument to the in Quezon City. One year later Rachelle, the legitimate
owner
Commissioner of Land Registration. of the land, discovered the fraudulent registration obtained by

Within five days from receipt of the notice of denial, the Rommel. She filed a complaint against Rommel for interested
party may elevate the matter by consulta to the reconveyance and caused the annotation of a notice of lis
Commissioner of Land Registration who shall enter an order pendens on the certificate of title issued to Rommel. Rommel
prescribing the step to be taken or memorandum to be made. now invokes the indefeasibility of his title considering that
Resolution in consulta shall be binding upon all Registers of Deeds one year has already elapsed from its issuance. He also seeks
provided that the party in interest may appeal to the Court of the cancellation of the notice of Lis pendens. Will Rachelle's
Appeals within the period prescribed (Sec. 117, P.D. 1529). suit for reconveyance prosper? Explain.

Remedies; Reconveyance vs. Reopening of a Decree; Prescriptive Period (2003)

Louie, before leaving the country to train as a chef in a five-
star hotel in New York, U.S.A., entrusted to his first-degree
cousin Dewey an application for registration, under the Land
Registration Act, of a parcel of land located in Bacolod City. A
year later, Louie returned to the Philippines and discovered
that Dewey registered the land and obtained an Original
Certificate of Title over the property in his Deweys name.
Compounding the matter, Dewey sold the land to Huey, an
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
innocent purchaser for value. Louie promptly filed an action
for reconveyance of the parcel of land against Huey.
(a) Is the action pursued by Louie the proper remedy? (b)
Assuming that reconveyance is the proper remedy, will the
action prosper if the case was filed beyond one year, but
within ten years, from the entry of the decree of
registration?
5%
SUGGESTED ANSWER:
Yes. The property registered is deemed to be held in trust
for the real owner by the person in whose name it is
registered. The Torrens system was not designed to shield one
who had committed fraud or misrepresentation and thus
holds the title in bad faith. (Walstrom v. Mapa Jr., (G .R 38387,
29 Jan. 1990) as cited in Martinez, D., Summary of SC
Decisions, January to June, 1990, p. 359],
Remedies; Reconveyance; Prescriptive Period
(1997)
On 10 September 1965, Melvin applied for a free patent
covering two lots - Lot A and Lot B - situated in Santiago,
Isabela. Upon certification by the Public Land Inspector that
Melvin had been in actual, continuous, open, notorious,
exclusive and adverse possession of the lots since 1925, the
Director of Land approved Melvin's application on 04 June
1967. On 26 December 1967, Original Certificate of Title
(OCT) No. P-2277 was issued in the name of Melvln.
On 7 September 1971, Percival filed a protest alleging that
Lot B which he had been occupying and cultivating since
1947 was included in the Free Patent issued in the name of
Melvin. The Director of Lands ordered the investigation of
Percival's protest. The Special Investigator who conducted
the investigation found that Percival had been in actual
cultivation of Lot B since 1947.
SUGGESTED ANSWER:
Yes, Rachelle's suit will prosper because all elements for
an action for reconveyance are present, namely: a)
Rachelle is claiming dominical rights over the same land.
b) Rommel procured his title to the land by fraud. c) The
action was brought within the statutory period of
four (4) years from discovery of the fraud and not later
than ten (10} years from the date of registration of Rommel's
title. d) Title to the land has not passed into the
hands of an innocent purchaser
for value.
Rommel can invoke the indefeasibility of his title if Rachelle
had filed a petition to reopen or review the decree of
registration. But Rachelle instead filed an ordinary action in
personam for reconveyance. In the latter action,
indefeasibility is not a valid defense because, in filing such
action, Rachelle is not seeking to nullify nor to impugn the
indefeasibility of Rommel's title. She is only asking the court
to compel Rommel to reconvey the title to her as the
legitimate owner of the land.
ALTERNATIVE ANSWER:
This action does not prescribe. With respect to Percival's
On 28 November 1986, the Solicitor General filed in behalf
of the Republic of the Philippines a complaint for
cancellation of the free patent and the OCT issued in the
name of Melvin and the reversion of the land to public
domain on the ground of fraud and misrepresentation in
obtaining the free patent. On the same date, Percival sued
Martin for the reconveyance of Lot B.
Melvin filed his answers interposing the sole defense in both
cases that the Certificate of Title issued in his name became
incontrovertible and indefeasible upon the lapse of one year
from the issuance of the free patent.
Given the circumstances, can the action of the Solicitor
General and the case for reconveyance filed by Percival
possibly prosper?
SUGGESTED ANSWER:
"If fraud be discovered in the application which led to the
issuance of the patent and Certificate of Title, this Title
becomes ipso facto null and void. Thus, in a case where a
person who obtained a free patent, knowingly made a false
statement of material and essential facts in his application for
the same, by stating therein that the lot in question was part
of the public domain not occupied or claimed by any other
person, his title becomes ipso facto canceled and
consequently rendered null and void." "It is to the public
interest that one who succeeds In fraudulently acquiring title Remedies; Reopening of a Decree; Elements
to public land should not be allowed to benefit therefrom and (1992)
the State, through the Solicitor General, may file the What are the essential requisites or elements for the allowance
corresponding action for annulment of the patent and the of the reopening or review of a decree of registration?
reversion of the land involved to the public domain" (Dinero
us. Director of Lands; Kayaban vs. Republic L-33307,8-20-73; SUGGESTED ANSWER:
Director of The essential elements are: (1) that the petitioner has a real or
dominical right; (2) that he has been deprived thereof through
Lands us. Hon. Pedro Samson Animas, L-37682, 3-29-74.) fraud; (3) that the petition is filed within one (1) year from the
action for reconveyance, it would have prescribed, having been filed more issuance of the decree; and (4) that the property has not yet
than ten (10) years after registration and issuance of an O.C.T. in the
been transferred to an innocent
name of Melvin, were it not for the inherent infirmity of the latter's title.
Under the facts, the statute of limitations will not apply to Percival
because Melvin knew that a part of the land covered by his title actually
belonged to Percival. So, instead of nullifying in toto the title of Melvin,
the court, in the exercise of equity and jurisdiction, may grant prayer for
the reconveyance of Lot B to Percival who has actually possessed the land
under a claim of ownership since 1947. After all, if Melvin's title is
declared void ab initio and the land is reverted to the public domain,
Percival would just the same be entitled to preference right to acquire the
land from the government. Besides, well settled is the rule that once
public land has been in open, continuous, exclusive and notorious
possession under a bonafide claim of acquisition of ownership for the
period prescribed by Section 48 of the Public Land Act, the same ipso
jure ceases to be public and in contemplation of law acquired the
character of private land. Thus, reconveyance of the land from Melvin to
Percival would be the better procedure, (Vitale vs. Anore, 90 Phil. 855;
Pena, Land Titles and Deeds, 1982, Page 427)

ALTERNATIVE ANSWER:
The action of the Solicitor General should prosper,
considering that the doctrine of indefeasibility of title does
not apply to free patent secured through fraud. A certificate
of title cannot be used as shield to perpetuate fraud. The State
is not bound by the period of prescription stated in Sec. 38 of
Act 496. (Director of Lands vs. Abanilla, 124 SCRA 358)

The action for reconveyance filed by Percival may still prosper

provided that the property has not passed to an innocent third party
for value (Dablo us. Court of Appeals. 226 SCRA 618), and provided
that the action is filed within the prescriptive period of ten years
(Tale vs. Court of Appeals. 208 SCRA 266). Since the action was filed
by Percival 19 years after the issuance of Melvin's title, it is submitted
that the same is already barred by prescription. ALTERNATIVE ANSWER
(to second part of question) The action for reconveyance filed by
Percival will prosper, because the land has ceased to be public land
and has become private land by open, continuous, public, exclusive
possession under a bona fide claim of ownership for more than thirty
years, and Percival is still in possession of the property at present. His
action for reconveyance can be considered as an action to quiet title,
which does not prescribe if the plaintiff is in possession of the
property.

(Olviga v. CA. GR 1048013. October 21, 1993)

CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
SCRA 511; Ubudan vs. Gil Administrative Code of 1987 which prohibits officers and
45 SCRA 17). time, a final bill of sale was executed in his favor.
OPTIONAL EXTENDED ANSWER:
Petition for review of the Decree of Registration. A remedy
expressly provided in Section 32 of P. D. No. 1529 (formerly
Section 38. Act 496), this remedy has the following elements:
a) The petition must be filed by a person claiming
dominical or other real rights to the land registered in the
name of respondent.
b) The registration of the land in the name of
respondent was procured by means of actual, (not just
constructive) fraud, which must be extrinsic. Fraud is actual
if the registration was made through deceit or any other
intentional act of downright dishonesty to enrich oneself at
the expense of another. It is extrinsic when it is something
that was not raised, litigated and passed upon in the main
proceedings.
c) The petition must be filed within one (1) year from
the date of the issuance of the decree.
d) Title to the land has not passed to an Innocent
purchaser for value (Libudan vs. Gil, 45_ SCRA 27, 1972),
Rublico vs. Orrelana. 30 SCRA 511, 1969); RP vs. CA, 57 G.
R No. 40402. March 16, 1987).
Torrens System vs. Recording of Evidence of
Title (1994) Distinguish the Torrens system of land
registration from the system of recording of evidence of
title.
SUGGESTED ANSWER:
a) The TORRENS SYSTEM OF LAND REGISTRATION
is a
system for the registration of title to the land. Thus, under this
system what is entered in the Registry of Deeds, is a record of
the owner's estate or interest in the land, unlike the system
under the Spanish Mortgage Law or the system under Section
194 of the Revised Administrative Code as amended by Act
3344 where only the evidence of such title is recorded. In the
latter system, what is recorded is the deed of conveyance from
hence the owner's title emanatedand not the title itself.
b) Torrens system of land registration is that which is
prescribed in Act 496 (now PD 1529), which is either
Judicial or quasi-judicial. System or recording of evidence
of title is merely the registration of evidence of acquisitions
of land with the Register of Deeds, who annotates the same
on the existing title, cancels the old one and issues a new
title based on the document presented for registration.
Unregistered Land (1991)
Maria Enriquez failed to pay the realty taxes on her
unregistered agricultural land located in Magdugo,
Toledo City. In 1989, to satisfy the taxes due, the City
sold it at public auction to Juan Miranda, an
employee at the Treasurer's Office of said City,
whose bid at P10,000.00 was the highest. In due
purchaser {Rublico vs. Orellana 30
Maria refused to turn-over the possession of the
property to Juan alleging that (1) she had been, in the
meantime, granted a free patent and on the basis
thereof an Original Certificate of Title was issued to
her, and (2) the sale in favor of Juan is void from the
beginning in view of the provision in the
employees of the government from purchasing directly
or indirectly any property sold by the government for
nonpayment of any tax, fee or other public charge.
( a) Is the sale to Juan valid? If so, what is the effect of the
Issuance of the Certificate of Title to Maria? (b) If the
sale is void, may Juan recover the P10,000.00? If not, why
not?
(c) If the sale is void, did it not nevertheless, operate to divert
Maria of her ownership? If it did, who then is the owner of the
property?
SUGGESTED ANSWER:
A. The sale of the land to Juan is not valid, being
contrary to law. Therefore, no transfer of ownership of the
land was effected from the delinquent taxpayer to him. The
original certificates of title obtained by Maria thru a free patent
grant from the Bureau of Lands under Chapter VII, CA 141 is
valid but in view of her delinquency, the said title is subject to
the right of the City Government to sell the land at public
auction. The issuance of the OCT did not exempt the land
from the tax sales. Section 44 of P.O. No. 1529 provides that
every registered owner receiving a Certificate of Title shall hold
the same free from an encumbrances, subject to certain
exemptions.
B. Juan may recover because he was not a party to the
violation of the law.
C. No, the sale did not divest Maria of her title precisely
because the sale is void. It is as good as if no sale ever took
place. In tax sales, the owner is divested of his land initially
upon award and issuance of a Certificate of Sale, and finally
after the lapse of the 1 year period from date of registration, to
redeem, upon execution by the treasurer of an instrument
sufficient in form and effects to convey the property. Maria
remained owner of the land until another tax sale is to be
performed in favor of a qualified buyer.
CONTRACTS
Consensual vs. Real Contracts; Kinds of Real
Contracts
(1998)
Distinguish consensual from real contracts and name at least
four (4) kinds of real contracts under the present law. [3%]
SUGGESTED ANSWER:
CONSENSUAL CONTRACTS are those which are perfected
by mere consent (Art. 1315. Civil Code). REAL
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
CONTRACTS are those which are perfected by the delivery of cause of obligation. Marvin cannot be held to have breached the
the object of the obligation. (Art. 1316, Civil Code) Examples contract. Thus, he cannot be held liable for damages.
of real contracts are deposit, pledge, commodatum and simple
loan (mutuum). b) Will your answer be the same if Carlos paid Marvin
P10,000.00 as consideration for that option? Explain.
Consideration; Validity (2000) (2%) ALTERNATIVE
Lolita was employed in a finance company. Because she could ANSWER:
not account for the funds entrusted to her, she was charged My answer will be the same as to the perfection of the contract
with estafa and ordered arrested. In order to secure her release for the construction of the house of Carlos. No perfected
from jail, her parents executed a promissory note to pay the contract arises because of lack of consent. With the withdrawal
finance company the amount allegedly misappropriated by their of the offer, there could be no concurrence of offer and
daughter. The finance company acceptance.
then executed an affidavit of desistance which led to the My answer will not be the same as to damages. Marvin will be liable
withdrawal of the information against Lolita and her release for damages for breach of contract of option. With the payment
from jail. The parents failed to comply with their promissory of the consideration for the option given, and with the consent of
note and the finance company sued them for specific the parties and the object of contract being present, a perfected
performance. Will the action prosper or not? (3%) SUGGESTED contract of option was created.
ANSWER: (San Miguel, Inc. v. Huang, G.R. No. 137290, July 31, 2000)
The action will prosper. The promissory note executed by Under Article 1170 of the Civil Code, those who in the
Lolita's parents is valid and binding, the consideration being the performance of their obligation are guilty of contravention
extinguishment of Lolita's civil liability and not the stifling of the thereof, as in this case, when Marvin did not give Carlos the
criminal prosecution. agreed period of ten days, are liable for damages.
ALTERNATIVE ANSWER:
ALTERNATIVE ANSWER:
The action will not prosper because the consideration for the
promissory note was the non-prosecution of the criminal case My answer will not be the same if Carlos paid Marvin P10,000.00
for estafa. This cannot be done anymore because the because an option contract was perfected. Thus, if Marvin
information has already been filed in court and to do it is illegal. withdrew the offer prior to the expiration of the 10-day period,
That the consideration for the promissory note is the stifling of he breached the option contract. (Article 1324,
the criminal prosecution is evident from the execution by the Civil Code)
finance company of the affidavit of desistance immediately after
the execution by Lolita's parents of the promissory note. The c) Supposing that Carlos accepted the offer before Marvin
consideration being illegal, the promissory note is invalid and could communicate his withdrawal thereof?
may not be enforced by court action. Discuss the legal consequences. (2%) SUGGESTED
ANSWER:
Contract of Option; Elements (2005) A contract to construct the house of Carlos is perfected.
Marvin offered to construct the house of Carlos for a very Contracts are perfected by mere consent manifested by the
reasonable price of P900,000.00, giving the latter 10 days within meeting of the offer and the acceptance upon the thing and the
which to accept or reject the offer. On the fifth day, before cause which are to constitute the contract. (Gomez v. Court of
Carlos could make up his mind, Marvin withdrew his offer. Appeals, G.R. No. 120747, September 21, 2000)
a) What is the effect of the withdrawal of Marvin's offer?
Under Article 1315 of the Civil Code, Carlos and Marvin are
(2%) SUGGESTED bound to fulfill what has been expressly stipulated and all
ANSWER:
consequences thereof. Under Article 1167, if Marvin would
The withdrawal of Marvin's offer will cause the offer to cease in
refuse to construct the house, Carlos is entitled to have the
law. Hence, even if subsequently accepted, there could be no
construction be done by a third person at the expense of
concurrence of the offer and the acceptance. In the absence of
Marvin. Marvin in that case will be liable for damages under
concurrence of offer and acceptance, there can be no consent.
Article 1170.
(Laudico v. Arias Rodriguez, G.R. No. 16530, March 31,
1922) Without consent, there is no perfected contract for the
Inexistent Contracts vs. Annullable Contracts
construction of the house of Carlos. (Salonga v. Farrales, G.R.
(2004) Distinguish briefly but clearly between Inexistent
No. L-47088, July 10, 1981) Article 1318 of the Civil Code
contracts and annullable contracts.
provides that there can be no contract unless the following SUGGESTED ANSWER:
requisites concur: (1) consent of the parties; (2) object certain INEXISTENT CONTRACTS are considered as not having
which is the subject matter of the contract; and (3) cause of the been entered into and, therefore, void ob initio. They do not
obligation. create any obligation and cannot be ratified or validated, as there
Marvin will not be liable to pay Carlos any damages for is no agreement to ratify or validate. On the other hand,
withdrawing the offer before the lapse of the period granted. In ANNULLABLE or VOIDABLE CONTRACTS are valid until
this case, no consideration was given by Carlos for the option invalidated by the court but may be ratified. In inexistent
given, thus there is no perfected contract of option for lack of contracts, one or more requisites of a valid contract are absent.
In anullable contracts, all the elements of a contract are present
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
except that the consent of one of the contracting parties was telephone company (Art. 1293, NCC). Baldomero is, therefore,
vitiated or one of them has no capacity to give consent. liable under the contract.
Nature of Contracts; Obligatoriness (1991)
Roland, a basketball star, was under contract for one year to
play-for-play exclusively for Lady Love, Inc. However, even
before the basketball season could open, he was offered a more
attractive pay plus fringes benefits by Sweet Taste, Inc. Roland
accepted the offer and transferred to Sweet Taste. Lady Love
sues Roland and Sweet Taste for breach of contract. Defendants
claim that the restriction to play for
Lady Love alone is void, hence, unenforceable, as it
constitutes an undue interference with the right of Roland
to enter into contracts and the impairment of his freedom to
play and enjoy basketball.
Can Roland be bound by the contract he entered into with Lady
Love or can he disregard the same? Is he liable at all?
How about Sweet Taste? Is it liable to Lady Love?
SUGGESTED ANSWER:
Roland is bound by the contract he entered into with Lady Love
and he cannot disregard the same, under the principles of
obligatoriness of contracts. Obligations arising from contracts
have the force of law between the parties.
SUGGESTED ANSWER:
Yes, Roland is liable under the contract as far as Lady Love is
concerned. He is liable for damages under Article 1170 of the
Civil Code since he contravened the tenor of his obligation. Not
being a contracting party, Sweet Taste is not bound by the
contract but it can be held liable under Art. 1314. The basis of
its liability is not prescribed by contract but is founded on quasi-
delict, assuming that Sweet Taste knew of the contract. Article
1314 of the Civil Code provides that any third person who
induces another to violate his contract shall be liable for damages
to the other contracting party.
ALTERNATIVE ANSWER:
It is assumed that Lady Love knew of the contract. Neither
Roland nor Sweet Taste would be liable, because the restriction
in the contract is violative of Article 1306 as being contrary to
law morals, good customs, public order or public policy.
Nature of Contracts; Privity of Contract (1996)
Baldomero leased his house with a telephone to Jose. The lease
contract provided that Jose shall pay for all electricity, water and
telephone services in the leased premises during the period of
the lease. Six months later. Jose surreptitiously vacated the
premises. He left behind unpaid telephone bills for overseas
telephone calls amounting to over P20,000.00. Baldomero
refused to pay the said bills on the ground that Jose had already
substituted him as the customer of the telephone company. The
latter maintained that Baldomero remained as his customer as
far as their service contract was concerned, notwithstanding the
lease contract between Baldomero and Jose. Who is correct,
Baldomero or the telephone company? Explain. SUGGESTED
ANSWER:
The telephone company is correct because as far as it is
concerned, the only person it contracted with was Baldomero. v. CA, supra.)
The telephone company has no contract with Jose. Baldomero
cannot substitute Jose in his stead without the consent of the Rescission of Contracts; Proper Party (1996)
Nature of Contracts; Relativity of Contracts (2002)
Printado is engaged in the printing business. Suplico
supplies printing paper to Printado pursuant to an
order agreement under which Suplico binds himself to
deliver the same volume of paper every month for a
period of 18 months, with Printado in turn agreeing to
pay within 60 days after each delivery. Suplico has
been faithfully delivering under the order agreement for
any payment at all. Printado has also a standing contract
10 months but thereafter stopped doing so, because
Printado has not made with publisher Publico for the
printing of 10,000 volumes of school textbooks.
Suplico was aware of said printing contract. After
printing 1,000 volumes, Printado also fails to perform
under its printing contract with Publico. Suplico sues
Printado for the value of the unpaid deliveries under
their order agreement. At the same time Publico sues
Printado for damages for breach of contract with
respect to their own printing agreement. In the suit filed
by Suplico, Printado counters that: (a) Suplico cannot
demand payment for deliveries made under their order
agreement until Suplico has completed performance
under said contract; (b)
Suplico should pay damages for breach of contract;
and (c) with
Publico should be liable for Printados breach of his
contract with
Publico because the order agreement between Suplico
and Printado was for the benefit of Publico. Are the
contentions of Printado tenable? Explain your answers
as to each contention. (5%)
SUGGESTED ANSWER:
No, the contentions of Printado are untenable. Printado having
failed to pay for the printing paper covered by the delivery
invoices on time, Suplico has the right to cease making further
delivery. And the latter did not violate the order agreement
(Integrated Packaging Corporation v. Court of Appeals, (333
SCRA 170, G.R. No. 115117, June 8, [2000]).
Suplico cannot be held liable for damages, for breach of contract, as it
was not he who violated the order agreement, but Printado. Suplico
cannot be held liable for Printados breach of contract with Publico.
He is not a party to the agreement entered into by and between
Printado and Publico. Theirs is not a stipulation pour atrui.
[Aforesaid] Such contracts do could not affect third persons like
Suplico because of the basic civil law principle of relativity of
contracts which provides that contracts can only bind the parties who
entered into it, and it cannot favor or prejudice a third person, even if
he is aware of such contract and has acted with knowledge thereof.
(Integrated Packaging Corporation
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
In December 1985, Salvador and the Star Semiconductor
Company (SSC) executed a Deed of Conditional Sale wherein
the former agreed to sell his 2,000 square meter lot in Cainta,
Rizal, to the latter for the price of P1,000,000.00, payable
P100,000.00 down, and the balance 60 days after the squatters
in the property have been removed. If the squatters are not
removed within six months, the P100,000.00 down payment
shall be returned by the vendor to the vendee, Salvador filed
ejectment suits against the squatters, but in spite of the
decisions in his favor, the squatters still would not leave. In
August, 1986, Salvador offered to return the P100,000.00 down
payment to the vendee, on the ground that he is unable to
remove the squatters on the property. SSC refused to accept
the money and demanded that Salvador execute a deed of
absolute sale of the property in its favor, at which time it will
pay the balance of the price. Incidentally, the value of the land
had doubled by that time.
CIVIL LAW (Year 1990-2006)
Answers to the BAR as Arranged by Topics
Salvador consigned the P 100,000.00 in court, and filed an
action for rescission of the deed of conditional sale, plus
damages. Will the action prosper? Explain.
SUGGESTED ANSWER:
No, the action will not prosper. The action for rescission may
be brought only by the aggrieved party to the contract. Since
it was Salvador who failed to comply with his conditional
obligation, he is not the aggrieved party who may file the
action for rescission but the Star Semiconductor Company.
The company, however, is not opting to rescind the contract
but has chosen to waive Salvador's compliance with the
condition which it can do under Art. 1545, NCC.
ALTERNATIVE ANSWER:
The action for rescission will not prosper. The buyer has not
committed any breach, let alone a substantial or serious one,
to warrant the rescission/resolution sought by the vendor. On
the contrary, it is the vendor who appears to have failed to
comply with the condition imposed by the contract the
fulfillment of which would have rendered the obligation to pay
the balance of the purchase price demandable. Further, far
from being unable to comply with what is incumbent upon it,
ie., pay the balance of the price the buyer has offered to pay it
even without the vendor having complied with the suspensive
condition attached to the payment of the price, thus waiving
such condition as well as the 60-day term in its favor The
stipulation that the P100,000.00 down payment shall be
returned by the vendor to the vendee if the squatters are not
removed within six months, is also a covenant for the benefit
of the vendee, which the latter has validly waived by
implication when it offered to pay the balance of the purchase
price upon the execution of a deed of absolute sale by the
vendor. (Art. 1545, NCC)
OBLIGATIONS
Aleatory Contracts; Gambling (2004)
A. Mr. ZY lost P100,000 in a card game called Russian poker,
but he had no more cash to pay in full the winner at the time
the session ended. He promised to pay PX, the winner, two
weeks thereafter. But he failed to do so despite the lapse of
two months, so PX filed in court a suit to collect the amount
of P50,000 that he won but remained unpaid. Will the
collection suit against ZY prosper? Could Mrs. ZY file in turn
a suit against PX to recover the P100,000 that her husband
lost? Reason. (5%) SUGGESTED ANSWER:
A. 1. The suit by PX to collect the balance of what he won
from ZY will not prosper. Under Article 2014 of the Civil
Code, no action can be maintained by the winner for the
collection of what he has won in a game of chance. Although
poker may depend in part on ability, it is fundamentally a game
of chance.
2) If the money paid by ZY to PX was conjugal or
community property, the wife of ZY could sue to recover it
because Article 117(7) of the Family Code provides that
property of ZY, his wife may also sue to recover it under
losses in gambling or betting are borne exclusively by the
loser-spouse. Hence, conjugal or community funds may not
be used to pay for such losses. If the money were exclusive
Article 2016 of the Civil Code if she and the family needed
the money for support.
ALTERNATIVE ANSWER (2):
A. (2). Mrs. ZY cannot file a suit to recover what her husband
lost. Art 2014 of the Civil Code provides that any loser in a game
of chance may recover his loss from the winner, with legal
interest from the time he paid the amount lost. This means that
only he can file the suit. Mrs. ZY cannot recover as a spouse
who has interest in the absolute community property or conjugal
partnership of gains, because under Art. 117(7} of the Family
Code, losses are borne exclusively by the loser-spouse.
Therefore, these cannot be charged against absolute community
property or conjugal partnership of gains. This being so, Mrs.
ZY has no interest in law to prosecute and recover as she has
no legal standing in court to do so.
Conditional Obligations (2000)
Pedro promised to give his grandson a car if the latter will pass
the bar examinations. When his grandson passed the said
examinations, Pedro refused to give the car on the ground that
the condition was a purely potestative one. Is he correct or not?
(2%)
SUGGESTED ANSWER:
No, he is not correct. First of all, the condition is not purely
potestative, because it does not depend on the sole will of one
of the parties. Secondly, even if it were, it would be valid because
it depends on the sole will of the creditor (the donee) and not of
the debtor (the donor).
Conditional Obligations (2003)
Are the following obligations valid, why, and if they are valid,
when is the obligation demandable in each case? a) If the
debtor promises to pay as soon as he has the means to pay; b)
If the debtor promises to pay when he likes; c) If the debtor
promises to pay when he becomes a
lawyer; d) If the debtor promises to pay if his son, who is sick
with cancer, does not die within one year. 5%
SUGGESTED ANSWER:
(a) The obligation is valid. It is an obligation subject to an
indefinite period because the debtor binds himself to pay when
his means permit him to do so (Article 1180, NCC). When the
creditor knows that the debtor already has the means to pay, he
must file an action in court to fix the period, and when the
definite period as set by the court arrives, the obligation to pay
becomes demandable 9Article 1197, NCC).
SUGGESTED ANSWER:
(b) The obligation to pay when he likes is a suspensive
condition the fulfillment of which is subject to the sole will of
the debtor and, therefore the conditional obligation is void.
(Article 1182, NCC).
SUGGESTED ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
(c) The obligation is valid. It is subject to a suspensive
condition, i.e. the future and uncertain event of his becoming a (a) Yes, the sale to the other person is valid as a sale with a
lawyer. The performance of this obligation does
the debtor but also on condition of Eva passing the 1998 Bar Examinations.
other factors outside the debtors control.
SUGGESTED ANSWER:
(d) The obligation is valid. The death of the son of cancer
within one year is made a negative suspensive condition to his
making the payment. The obligation is demandable if the son
does not die within one year (Article 1185, NCC).
Conditional Obligations; Promise (1997)
In two separate documents signed by him, Juan Valentino
"obligated" himself each to Maria and to Perla, thus - 'To
Maria, my true love, I obligate myself to give you my one and
only horse when I feel like It." - and -'To Perla, my true
sweetheart, I obligate myself to pay you the P500.00 I owe
you when I feel like it." Months passed but Juan never
bothered to make good his promises. Maria and Perla came
to consult you on whether or not they could recover on the
basis of the foregoing settings. What would your legal advice
be?
SUGGESTED ANSWER:
I would advise Maria not to bother running after Juan for the
latter to make good his promise. [This is because a promise is
not an actionable wrong that allows a party to recover
especially when she has not suffered damages resulting from
such promise. A promise does not create an obligation on
the part of Juan because it is not something which arises
from a contract, law, quasi-contracts or quasidelicts (Art,
1157)]. Under Art. 1182, Juan's promise to Maria is void
because a conditional obligation depends upon the sole will
of the obligor.
As regards Perla, the document is an express
acknowledgment of a debt, and the promise to pay what he
owes her when he feels like it is equivalent to a promise to
pay when his means permits him to do so, and is deemed to
be one with an indefinite period under Art. 1180. Hence the
amount is recoverable after Perla asks the court to set the
period as provided by Art. 1197, par. 2.
Conditional Obligations; Resolutory Condition
(1999)
In 1997, Manuel bound himself to sell Eva a house and lot
which is being rented by another person, if Eva passes the
1998 bar examinations. Luckily for Eva, she passed said
examinations.
(a) Suppose Manuel had sold the same house and lot to
another before Eva passed the 1998 bar examinations, is
such sale valid? Why? (2%)
(b) Assuming that it is Eva who is entitled to buy said
house and lot, is she entitled to the rentals collected by
Manuel before she passed the 1998 bar examinations? Why?
(3%)
SUGGESTED ANSWER:
resolutory condition because what operates as a suspensive
not depend solely on the will of
condition for Eva operates a resolutory condition for the
buyer.
FIRST ALTERNATIVE ANS WER:
Yes, the sale to the other person is valid. However, the buyer
acquired the property subject to a resolutory
Hence, upon Eva's passing the Bar, the rights of the other buyer
terminated and Eva acquired ownership of the property.
SECOND ALTERNATIVE ANSWER:
The sale to another person before Eva could buy it from Manuel
is valid, as the contract between Manuel and Eva is a mere
promise to sell and Eva has not acquired a real right over the
land assuming that there is a price stipulated in the contract for
the contract to be considered a sale and there was delivery or
tradition of the thing sold.
SUGGESTED ANSWER:
(b) No, she is not entitled to the rentals collected by Manuel
because at the time they accrued and were collected, Eva was
not yet the owner of the property.
FIRST ALTERNATIVE ANSWER:
Assuming that Eva is the one entitled to buy the house and lot,
she is not entitled to the rentals collected by Manuel before she
passed the bar examinations. Whether it is a contract of sale or
a contract to sell, reciprocal prestations are deemed imposed A
for the seller to deliver the object sold and for the buyer to pay
the price. Before the happening of the condition, the fruits of
the thing and the interests on the money are deemed to have
been mutually compensated under
Article 1187.
SECOND ALTERNATIVE ANSWER:
Under Art. 1164, there is no obligation on the part of Manuel to
deliver the fruits (rentals) of the thing until the obligation to
deliver the thing arises. As the suspensive condition has not
been fulfilled, the obligation to sell does not arise.
Extinguishment; Assignment of Rights (2001)
The sugar cane planters of Batangas entered into a long-term
milling contract with the Central Azucarera de Don Pedro Inc.
Ten years later, the Central assigned its rights to the said milling
contract to a Taiwanese group which would take over the
operations of the sugar mill. The planters filed an action to annul
the said assignment on the ground that the Taiwanese group was
not registered with the Board of Investments. Will the action
prosper or not? Explain briefly. (5%)
(Note: The question presupposes knowledge and requires the application
of the provisions of the Omnibus Investment Code, which
properly belongs to Commercial law)
SUGGESTED ANSWER:
The action will prosper not on the ground invoked but on the
ground that the farmers have not given their consent to the
assignment. The milling contract imposes reciprocal obligations
on the parties. The sugar central has the obligation to mill the
sugar cane of the farmers while the latter have the obligation to
deliver their sugar cane to the sugar central. As to the obligation
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
to mill the sugar cane, the sugar central is a debtor of the
farmers. In assigning its rights under the contract, the sugar
central will also transfer to the Taiwanese its obligation to mill
the sugar cane of the farmers. This will amount to a novation of
the contract by substituting the debtor with a third party. Under
Article 1293 of the Civil Code, such substitution cannot take
effect without the consent of the creditor. The formers, who are
creditors as far as the obligation to mill their sugar cane is
concerned, may annul such assignment for not having given
their consent thereto.
ALTERNATIVE ANSWER:
The assignment is valid because there is absolute freedom to
transfer the credit and the creditor need not get the consent
of the debtor. He only needs to notify him.
Extinguishment; Cause of Action (2004)
TX filed a suit for ejectment against BD for non-payment of
condominium rentals amounting to P150,000. During the
pendency of the case, BD offered and TX accepted the full
amount due as rentals from BD, who then filed a motion to
dismiss the ejectment suit on the ground that the action is
already extinguished. Is BDs contention correct? Why or
why not? Reason. (5%)
SUGGESTED ANSWER:
BD's contention is not correct. TX can still maintain the suit
for ejectment. The acceptance by the lessor of the payment
by the lessee of the rentals in arrears even during the
pendency of the ejectment case does not constitute a waiver
or abandonment of the ejectment case. (Spouses Clutario v.
CA, 216 SCRA 341 [1992]).
Extinguishment; Compensation (2002)
Stockton is a stockholder of Core Corp. He desires to sell his
shares in Core Corp. In view of a court suit that Core Corp.
has filed against him for damages in the amount of P 10
million, plus attorneys fees of P 1 million, as a result of
statements published by Stockton which are allegedly
defamatory because it was calculated to injure and damage
the corporations reputation and goodwill. The articles of
incorporation of Core Corp. provide for a right of first
refusal in favor of the corporation. Accordingly, Stockton
gave written notice to the corporation of his offer to sell his
shares of P 10 million. The response of Core corp. was an
acceptance of the offer in the exercise of its rights of first
refusal, offering for the purpose payment in form of
compensation or set-off against the amount of damages it is
claiming against him, exclusive of the claim for attorneys
fees. Stockton rejected the offer of the corporation, arguing
that compensation between the value of the shares and the
amount of damages demanded by the corporation cannot
legally take effect. Is Stockton correct? Give reason for your
answer. (5%)
SUGGESTED ANSWERS:
Stockton is correct. There is no right of compensation
between his price of P10 million and Core Corp.s
unliquidated claim for damages. In order that compensation
may be proper, the two debts must be liquidated and
demandable. The case for the P 10million damages being still
pending in court, the corporation has as yet no claim which is
due and demandable against Stockton.
ANOTHER MAIN ANSWER:
The right of first refusal was not perfected as a right for the
reason that there was a conditional acceptance equivalent to a
counter-offer consisting in the amount of damages as being
credited on the purchase price. Therefore, compensation did
not result since there was no valid right of first refusal (Art.
Even [if] assuming that there was a perfect right of first
1475 & 1319, NCC)
ANOTHER MAIN ANSWER:
refusal, compensation did not take place because the claim is
unliquidated.
Extinguishment; Compensation vs. Payment (1998)
Define compensation as a mode of extinguishing an obligation,
and distinguish it from payment. [2%]
SUGGESTED ANSWER:
COMPENSATION is a mode of extinguishing to the
concurrent amount, the obligations of those persons who in
their own right are reciprocally debtors and creditors of each
other (Tolentino, 1991 ed., p. 365, citing 2 Castan 560 and Francia
vs. IAC. 162 SCRA 753). It involves the simultaneous balancing
of two obligations in order to extinguish them to the extent in
which the amount of one is covered by that of the other. (De
Leon, 1992 ed., p. 221, citing 8 Manresa 401).
PAYMENT means not only delivery of money but also
performance of an obligation (Article 1232, Civil Code). In
payment, capacity to dispose of the thing paid and capacity to
receive payment are required for debtor and creditor,
respectively: in compensation, such capacity is not necessary,
because the compensation operates by law and not by the act of
the parties. In payment, the performance must be complete;
while in compensation there may be partial extinguishment of an
obligation (Tolentino, supra)
Extinguishment; Compensation/Set-Off; Banks
(1998)
X, who has a savings deposit with Y Bank in the sum of
P1,000,000.00 incurs a loan obligation with the said Bank in the
sum of P800.000.00 which has become due. When X tries to
withdraw his deposit, Y Bank allows only P200.000.00 to be
withdrawn, less service charges, claiming that compensation has
extinguished its obligation under the savings account to the
concurrent amount of X's debt. X contends that compensation
is improper when one of the debts, as here, arises from a
contract of deposit. Assuming that the promissory note signed
by X to evidence the loan does not provide for compensation
between said loan and his savings deposit, who is correct? [3%]
SUGGESTED ANSWER:
Y bank is correct. An. 1287, Civil Code, does not apply. All the
requisites of Art. 1279, Civil Code are present. In the case of
Gullas vs. PNB [62 Phil. 519), the Supreme Court held: "The
Civil Code contains provisions regarding compensation (set off)
and deposit. These portions of Philippine law provide that
compensation shall take place when two persons are reciprocally
creditor and debtor of each other. In this connection, it has been
held that the relation existing between a depositor and a bank is
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
that of creditor and debtor, x x x As a general rule, a bank has a
right of set off of the deposits in its hands for the payment of
any indebtedness to it on the part of a depositor." Hence,
compensation took place between the mutual obligations of X
and Y bank.
Extinguishment; Condonation (2000)
Arturo borrowed P500,000.00 from his father. After he had paid
P300,000.00, his father died. When the administrator of his
father's estate requested payment of the balance of
P200,000.00. Arturo replied that the same had been
condoned by his father as evidenced by a notation at the
back of his check payment for the P300,000.00 reading: "In
full payment of the loan". Will this be a valid defense in an
action for collection? (3%)
SUGGESTED ANSWER:
It depends. If the notation "in full payment of the loan" was
written by Arturo's father, there was an implied condonation
of the balance that discharges the obligation. In such case, the
notation is an act of the father from which condonation may
be inferred. The condonation being implied, it need not
comply with the formalities of a donation to be effective. The
defense of full payment will, therefore, be valid.
When, however, the notation was written by Arturo himself.
It merely proves his intention in making that payment but in
no way does it bind his father (Yam v. CA, G.R No. 104726. 11
February 1999). In such case, the notation was not the act of
his father from which condonation may be inferred. There
being no condonation at all the defense of full payment will
not be valid.
ALTERNATIVE ANSWER:
If the notation was written by Arturo's father, it amounted to
an express condonation of the balance which must comply
with the formalities of a donation to be valid under the 2nd
paragraph of Article 1270 of the New Civil Code. Since the
amount of the balance is more than 5,000 pesos, the
acceptance by Arturo of the condonation must also be in
writing under Article 748. There being no acceptance in
writing by Arturo, the condonation is void and the obligation
to pay the balance subsists. The defense of full payment is,
therefore, not valid. In case the notation was not written by
Arturo's father, the answer is the same as the answers above.
Extinguishment; Extraordinary Inflation or
Deflation (2001)
On July 1, 1998, Brian leased an office space in a building for
a period of five years at a rental rate of P1,000.00 a month.
The contract of lease contained the proviso that "in case of
inflation or devaluation of the Philippine peso, the monthly
rental will automatically be increased or decreased depending
on the devaluation or inflation of the peso to the dollar."
Starting March 1, 2001, the lessor increased the rental to
P2,000 a month, on the ground of inflation proven by the fact
that the exchange rate of the Philippine peso to the dollar had
increased from P25.00=$1.00 to P50.00=$1.00. Brian refused
to pay the increased rate and an action for unlawful detainer
was filed against him. Will the action prosper? Why? (5%)
SUGGESTED ANSWER:
The unlawful detainer action will not prosper. Extraordinary
inflation or deflation is defined as the sharp decrease in the
purchasing power of the peso. It does not necessarily refer to
the exchange rate of the peso to the dollar. Whether or not
there exists an extraordinary inflation or deflation is for the
courts to decide. There being no showing that the purchasing
power of the peso had been reduced tremendously, there
could be no inflation that would justify the increase in the
The action will not prosper. The existence of inflation or
amount of rental to be paid. Hence, Brian could refuse to pay
the increased rate. ALTERNATIVE ANSWER:
deflation requires an official declaration by the Bangko
Sentral ng Pilipinas.
ALTERNATIVE ANSWER:
The unlawful detainer action will prosper. It is a given fact in
the problem, that there was inflation, which caused the
exchange rate to double. Since the contract itself authorizes the
increase in rental in the event of an inflation or devaluation of
the Philippine peso, the doubling of the monthly rent is
reasonable and is therefore a valid act under the very terms of
the contract. Brian's refusal to pay is thus a ground for
ejectment.
Extinguishment; Loss (1994)
Dino sued Ben for damages because the latter had failed to
deliver the antique Marcedes Benz car Dino had purchased
from Ben, which wasby agreementdue for delivery on
December 31, 1993. Ben, in his answer to Dino's complaint,
said Dino's claim has no basis for the suit, because as the car
was being driven to be delivered to Dino on January 1, 1994, a
reckless truck driver had rammed into the Mercedes Benz. The
trial court dismissed Dino's complaint, saying Ben's obligation
had indeed, been extinguished by force majeure. Is the trial
court correct?
SUGGESTED ANSWER:
a) No. Article 1262, New Civil Code provides, "An obligation
which consists in the delivery of a determinate thing shall be
extinguished if it should be lost or destroyed without the fault
of the debtor, and before he has incurred in delay. b) The
judgment of the trial court is incorrect. Loss of the thing due
by fortuitous events or force majeure is a valid defense for a
debtor only when the debtor has not incurred delay.
Extinguishment of liability for fortuitous event requires that
the debtor has not yet incurred any delay. In the present case,
the debtor was in delay when the car was destroyed on January
1, 1993 since it was due for delivery on December 31,
1993. (Art. 1262 Civil Code)
c) It depends whether or not Ben the seller, was already in
default at the time of the accident because a demand for him to
deliver on due date was not complied with by him. That fact
not having been given in the problem, the trial court erred in
dismissing Dino's complaint. Reason: There is default making
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
him responsible for fortuitous events including the assumption
of risk or loss.
If on the other hand Ben was not in default as no demand has
been sent to him prior to the accident, then we must
distinguish whether the price has been paid or not. If it has
been paid, the suit for damages should prosper but only to
enable the buyer to recover the price paid. It should be noted
that Ben, the seller, must bear the loss on the principle of res
perit domino. He cannot be held answerable for damages as the
loss of the car was not imputable to his fault or fraud. In any
case, he can recover the value of the car from the party whose
negligence caused the accident. If no price has been paid at all,
the trial court acted correctly in dismissing the complaint.
Extinguishment; Loss; Impossible Service (1993)
Page 86 of 119
In 1971, Able Construction, Inc. entered into a contract
with Tropical Home Developers, Inc. whereby the former
would build for the latter the houses within its subdivision.
The cost of each house, labor and materials included, was
P100,000.00. Four hundred units were to be constructed
within five years. In 1973, Able found that it could no longer
continue with the job due to the increase in the price of oil
and its derivatives and the concomitant worldwide spiraling
of prices of all commodities, including basic raw materials
required for the construction of the houses. The cost of
development had risen to unanticipated levels and to such a
degree that the conditions and factors which formed the
original basis of the contract had been totally changed. Able
brought suit against Tropical Homes praying that the Court
relieve it of its obligation. Is Able Construction entitled to
the relief sought?
SUGGESTED ANSWER:
Yes, the Able Construction. Inc. is entitled to the relief
sought under Article 1267, Civil Code. The law provides:
"When the service has become so difficult as to be manifestly
beyond the contemplation of the parties, the obligor may
also be released therefrom, in whole or in part."
Extinguishment; Novation (1994)
In 1978, Bobby borrowed Pl,000,000.00 from Chito payable
in two years. The loan, which was evidenced by a promissory
note, was secured by a mortgage on real property. No action
was filed by Chito to collect the loan or to foreclose the
mortgage. But in 1991, Bobby, without receiving any amount
from Chito, executed another promissory note which was
worded exactly as the 1978 promissory note, except for the
date thereof, which was the date of its execution. 1) Can
Chito demand payment on the 1991 promissory note in
1994? 2) Can Chito foreclose the real estate mortgage if
Bobby fails to make good his obligation under the 1991
promissory note?
SUGGESTED ANSWER:
1) Yes, Chito can demand payment on the 1991
promissory note in 1994. Although the 1978 promissory note
for P1 million payable two years later or in 1980 became a
natural obligation after the lapse of ten (10) years, such
natural obligation can be a valid consideration of a novated
promissory note dated in 1991 and payable two years later, or
in 1993. All the elements of an implied real novation are
present: a) an old valid obligation; b) a new valid obligation;
c) capacity of the parties; d) animus novandi or intention to
novate; and e) The old and the new obligation should be
incompatible with each other on all material points (Article
1292). The two promissory notes cannot stand together,
hence, the period of prescription of ten (10) years has not yet
lapsed.
SUGGESTED ANSWER:
2) No. The mortgage being an accessory contract prescribed
has been extinguished by the novation or extinction of the
with the loan. The novation of the loan, however, did not expressly
include the mortgage, hence, the mortgage is extinguished under
Article 1296 of the NCC. The contract
principal obligation insofar as third parties are concerned.
Extinguishment; Payment (1995)
In 1983 PHILCREDIT extended loans to Rivett-Strom
Machineries, Inc. (RIVETTT-STROM), consisting of US$10
Million for the cost of machineries imported and directly paid by
PHTLCREDIT, and 5 Million in cash payable in installments
over a period of ten (10) years on the basis of the value thereof
computed at the rate of exchange of the U.S. dollar vis--vis the
Philippine peso at the time of payment.
RIVETT-STROM made payments on both loans which if based
on the rate of exchange in 1983 would have fully settled the
loans.
PHILCREDIT contends that the payments on both loans
should be based on the rate of exchange existing at the time of
payment, which rate of exchange has been consistently
increasing, and for which reason there would still be a
considerable balance on each loan. Is the contention of
PHILCREDIT correct? Discuss fully.
SUGGESTED ANSWER:
As regards the loan consisting of dollars, the contention of
PHILCREDIT is correct. It has to be paid in Philippine
currency computed on the basis of the exchange rate at the
TIME OF PAYMENT of each installment, as held in Kalalo
v. Luz, 34 SCRA 337. As regards the P5 Million loan in Philippine
pesos, PHILCREDIT is wrong. The payment thereof cannot be
measured by the peso-dollar exchange rate. That will be violative
of the Uniform Currency Act (RA, 529] which prohibits the
payment of an obligation which, although to be paid in
Philippine currency, is measured by a foreign currency. (Palanca
v. CA, 238 SCRA 593).
Liability; Lease; Joint Liability (2001)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Four foreign medical students rented the apartment of Thelma
for a period of one year. After one semester, three of them
returned to their home country and the fourth transferred to a
boarding house. Thelma discovered that they left unpaid
telephone bills in the total amount of P80,000.00. The lease
contract provided that the lessees shall pay for the telephone
services in the leased premises. Thelma demanded that the
fourth student pay the entire amount of the unpaid telephone
bills, but the latter is willing to pay only one fourth of it. Who is
correct? Why? (5%) SUGGESTED ANSWER:
The fourth student is correct. His liability is only joint, hence,
pro rata. There is solidary liability only when the obligation
expressly so states or when the law or nature of the obligation
requires solidarity (Art. 1207, CC). The contract of lease in the
problem does not, in any way, stipulate solidarity.
Liability; Solidary Liability (1998)
Joey, Jovy and Jojo are solidary debtors under a loan obligation
of P300,000.00 which has fallen due. The creditor has, however,
condoned Jojo's entire share in the debt. Since Jovy has become
insolvent, the creditor makes a demand on Joey to pay the debt.
1) How much, if any, may Joey be compelled to pay?
[2%] 2) To what extent, if at all, can Jojo be compelled by Joey
to contribute to such payment? [3%]
SUGGESTED ANSWER:
1. Joey can be compelled to pay only the remaining
balance of P200.000, in view of the remission of Jojo's share
by the creditor. (Art. 1219, Civil Code)
2. Jojo can be compelled by Joey to contribute P50.000
Art. 1217. par. 3, Civil Code provides. "When one of the
solidary debtors cannot, because of his insolvency, reimburse
his share to the debtor paying the obligation, such share shall
be borne by all his co-debtors, in proportion to the debt of
each."
Since the insolvent debtor's share which Joey paid was
P100,000, and there are only two remaining debtors - namely
Joey and Jojo - these two shall share equally the burden of
reimbursement. Jojo may thus be compelled by Joey to
contribute P50.000.00.
Liability; Solidary Obligation (1992)
In June 1988, X obtained a loan from A and executed with Y
as solidary co-maker a promissory note in favor of A for the
sum of P200,000.00. The loan was payable at P20,000.00 with
interest monthly within the first week of each month
beginning July 1988 until maturity in April 1989. To secure the
payment of the loan. X put up as security a chattel mortgage
on his car, a Toyota Corolla sedan. Because of failure of X and
Y to pay the principal amount of the loan, the car was
extrajudicially foreclosed. A acquired the car at A's highest bid
of P120,000.00 during the auction sale.
After several fruitless letters of demand against X and Y, A
sued Y alone for the recovery of P80.000.00 constituting the
deficiency. Y resisted the suit raising the following defenses:
a) That Y should not be liable at all because X was not sued
together with Y.
b) That the obligation has been paid completely by A's
acquisition of the car through "dacion en pago" or payment
by cession.
c) That Y should not be held liable for the deficiency of
P80,000.00 because he was not a co-mortgagor in the chattel
mortgage of the car which contract was executed by X alone
as owner and mortgagor.
d) That assuming that Y is liable, he should only pay the
proportionate sum of P40,000.00. Decide each defense with
reasons.
SUGGESTED ANSWER:
(a) This first defense of Y is untenable. Y is still liable as
solidary debtor. The creditor may proceed against any one of
the solidary debtors. The demand against one does not
preclude further demand against the others so long as the
debt is not fully paid.
(b) The second defense of Y is untenable. Y is still liable.
The chattel mortgage is only given as a security and not as
payment for the debt in case of failure to pay. Y as a solidary
co-maker is not relieved of further liability on the
promissory note as a result of the foreclosure of the chattel
mortgage.
(c) The third defense of Y is untenable. Y is a surety of X
and the extrajudicial demand against the principal debtor is
not inconsistent with a judicial demand against the surety. A
suretyship may co-exist with a mortgage. (d) The fourth
defense of Y is untenable. Y is liable for the entire prestation
since Y incurred a solidary obligation with
X.
(Arts. 1207, 1216. 1252 and 2047 Civil Code; Bicol Savings and Loan
Associates vs. Guinhawa 188 SCRA 642)
Liability; Solidary Obligation; Mutual Guaranty
(2003)
A,B,C,D, and E made themselves solidarity indebted to X for
the amount of P50,000.00. When X demanded payment from
A, the latter refused to pay on the following grounds. a) B is
only 16 years old. b) C has already been condoned by X c) D is
insolvent. d) E was given by X an extension of 6 months
without
the consent of the other four co-debtors. State the effect of
each of the above defenses put up by A on his obligation to
pay X, if such defenses are found to be true.
SUGGESTED ANSWERS:
(a) A may avail the minority of B as a defense, but only
for Bs share of P 10,000.00. A solidary debtor may avail
himself of any defense which personally belongs to a solidary
co-debtor, but only as to the share of that codebtor.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
(b) A may avail of the condonation by X of Cs share of
P 10, 000.00. A solidary debtor may, in actions filed by the
creditor, avail himself of all defenses which are derived from
the nature of the obligation and of those which are personal to
him or pertain to his own share. With respect to those which
personally belong to others, he may avail himself thereof only
as regards that part of the debt for which the latter are
responsible. (Article 1222, NCC).
(c) A may not interpose the defense of insolvency of D
as a defense. Applying the principle of mutual guaranty among
solidary debtors, A guaranteed the payment of Ds share and of
all the other co-debtors. Hence, A cannot avail of the defense
of Ds insolvency.
(d) The extension of six (6) months given by X to E may
be availed of by A as a partial defense but only for the share of
E, there is no novation of the obligation but only an act of
liberality granted to E alone.
Loss of the thing due; Force Majeure (2000)
Kristina brought her diamond ring to a jewelry shop for
cleaning. The jewelry shop undertook to return the ring by
February 1, 1999." When the said date arrived, the jewelry shop
informed Kristina that the Job was not yet finished. They
asked her to return five days later. On February 6, 1999,
Kristina went to the shop to claim the ring, but she was
informed that the same was stolen by a thief who entered the
shop the night before. Kristina filed an action
for damages against the jewelry shop which put up the
defense of force majeure. Will the action prosper or not?
(5%)
SUGGESTED ANSWER:
The action will prosper. Since the defendant was already in
default not having delivered the ring when delivery was
demanded by plaintiff at due date, the defendant is liable for
the loss of the thing and even when the loss was due to force
majeure.
Non-Payment of Amortizations; Subdivision
Buyer; When justified (2005)
Bernie bought on installment a residential subdivision lot
from DEVLAND. After having faithfully paid the
installments for 48 months, Bernie discovered that
DEVLAND had failed to develop the subdivision in
accordance with the approved plans and specifications within
the time frame in the plan. He thus wrote a letter to
DEVLAND informing it that he was stopping payment.
Consequently, DEVLAND cancelled the sale and wrote
Bernie, informing him that his payments are forfeited in its
favor.
a) Was the action of DEVLAND proper? Explain. (2%)
SUGGESTED ANSWER:
No, the action of DEVLAND is not proper. Under Section 23
of Presidential Decree No. 957, otherwise known as the
Subdivision and Condominium Buyer's Protection Decree,
non-payment of amortizations by the buyer is justified if non-
payment is due to the failure of the subdivision owner to
develop the subdivision project according to the approved plans
and within the limit for complying.
(Eugenio v. Drilon, G.R. No. 109404, January 22, 1996)
b) Discuss the rights of Bernie under the circumstances.
(2%)
SUGGESTED ANSWER:
Under P.D. No. 957, a cancellation option is available to
Bernie. If Bernie opts to cancel the contract, DEVLAND
must reimburse Bernie the total amount paid and the
amortizations interest, excluding delinquency interest, plus
interest at legal rate. (Eugenio v. Drilon, G.R. No. 109404,
January 22, 1996)
c) Supposing DEVLAND had fully developed the
subdivision but Bernie failed to pay further
installments after 4 years due to business reverses.
Discuss the rights and obligations of the parties. (2%)
SUGGESTED ANSWER:
In this case, pursuant to Section 24 of P.D. No. 957, R.A.
No. 6552 otherwise known as the Realty Installment Buyer
Protection Act, shall govern. Under Section 3 thereof,
Bernie is entitled: 1) to pay without additional interest the
unpaid installments due within a grace period of four (4)
months or one month for every year of installment paid; 2)
if the contract is cancelled, Bernie is entitled to the refund
of the cash surrender value equal to 50% of the total
payments made.
Bernie 50% of the total payments made. (Rillo v. Court of
DEVLAND on the other hand has the right to cancel the
contract after 30 days from receipt by Bernie of notice of
cancellation. DEVLAND is however obliged to refund to
Appeals, G.R. No. 125347, June 19,1997)
Period; Suspensive Period (1991)
In a deed of sale of a realty, it was stipulated that the buyer
would construct a commercial building on the lot while the
seller would construct a private passageway bordering the lot.
The building was eventually finished but the seller failed to
complete the passageway as some of the squatters, who were
already known to be there at the time they entered into the
contract, refused to vacate the premises. In fact, prior to its
execution, the seller filed ejectment cases against the squatters.
The buyer now sues the seller for specific performance with
damages. The defense is that the obligation to construct the
passageway should be with a period which, incidentally, had
not been fixed by them, hence, the need for fixing a judicial
period. Will the action for specific performance of the buyer
against the seller prosper?
SUGGESTED ANSWER:
No. the action for specific performance filed by the buyer is
premature under Art. 1197 of the Civil Code. If a period has
not been fixed although contemplated by the parties, the
parties themselves should fix that period, failing in which, the
Court maybe asked to fix it taking into consideration the
probable contemplation of the parties. Before the period is
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
fixed, an action for specific performance is premature.
ALTERNATIVE ANSWER:
It has been held in Borromeo vs. CA (47 SCRA 69), that the
Supreme Court allowed the simultaneous filing of action to fix
the probable contemplated period of the parties where none is
fixed in the agreement if this would avoid multiplicity of suits.
In addition, technicalities must be subordinated to substantial
justice.
ALTERNATIVE ANSWER:
The action for specific performance will not prosper. The filing
of the ejectment suit by the seller was precisely in compliance
with his obligations and should not, therefore, be faulted if no
decision has yet been reached by the Court on the matter.
TRUST
Express Trust; Prescription (1997)
On 01 January 1980, Redentor and Remedies entered into an
agreement by virtue of which the former was to register a
parcel of land in the name of Remedies under the explicit
covenant to reconvey the land to Remigio, son of Redentor,
upon the son's graduation from college. In 1981, the land was
registered in the name of Remedies.
Redentor died a year later or in 1982. In March 1983, Remigio
graduated from college. In February 1992, Remigio accidentally
found a copy of the document so constituting Remedies as the
trustee of the land. In May 1994, Remigio filed a case against
Remedies for the reconveyance of the land to him. Remedies,
in her answer, averred that the action already prescribed. How
should the matter be decided?
SUGGESTED ANSWER:
The matter should be decided in favor of Remigio (trustee)
because the action has not prescribed. The case at bar
involves an express trust which does not prescribe as long as
they have not been repudiated by the trustee (Diaz vs.
Gorricho. 103 Phil, 261).
Implied Trust (1998)
Juan and his sister Juana inherited from their mother two
parcels of farmland with exactly the same areas. For
convenience, the Torrens certificates of title covering both
lots were placed in Juan's name alone. In 1996, Juan sold to an
innocent purchaser one parcel in its entirety without the
knowledge and consent of Juana, and wrongfully kept for
himself the entire price paid.
1. What rights of action, if any, does Juana have against
and/or the buyer? |3%]
2. Since the two lots have the same area, suppose Juana
flies a complaint to have herself declared sole owner of the
entire remaining second lot, contending that her brother had
forfeited his share thereof by wrongfully disposing of her
undivided share in the first lot. Will the suit prosper? [2%]
SUGGESTED ANSWER:
1. When, for convenience, the Torrens title to the two parcels
of land were placed in Joan's name alone, there was created
an implied trust (a resulting trust) for the benefit of Juana
with Juan as trustee of one-half undivided or ideal portion of
each of the two lots. Therefore, Juana can file an action for
damages against Joan for having fraudulently sold one of the
two parcels which he partly held in trust for Juana's benefit.
Juana may claim actual or compensatory damage for the loss
of her share in the land; moral damages for the mental
anguish, anxiety, moral shock and wounded feelings she had
suffered; exemplary damage by way of example for the
common good, and attorney's fees.
Juana has no cause of action against the buyer who acquired
the land for value and in good faith, relying on the transfer
certificate of title showing that Juan is the registered owner
of the land.
ANOTHER ANSWER:
1. Under Article 476 of the Civil Code, Juana can file an
action for quieting of title as there is a cloud in the title to the
subject real property. Second, Juana can also file an action for
damages against Juan, because the settled rule is that the
proper recourse of the true owner of the property who was
prejudiced and fraudulently dispossessed of the same is to
bring an action for damages against those who caused or
employed the same. Third, since Juana had the right to her
share in the property by way of inheritance, she can demand
the partition of the thing owned in common, under Article
494 of the Civil Code, and ask that the title to the remaining
property be declared as exclusively hers.
However, since the farmland was sold to an innocent purchaser
for value, then Juana has no cause of action against the buyer
consistent with the established rule that the rights of an innocent
purchaser for value must be respected and protected
notwithstanding the fraud employed by the seller in securing his
1. Juana has the right of action to recover (a) her one-half
title. (Eduarte vs. CA, 253 SCRA 391)
ADDITIONAL ANSWER:
share in the proceeds of the sale with legal interest thereof, and
(b) such damages as she may be able to prove as having been
suffered by her, which may include actual or compensatory
damages as well as moral and exemplary damages due to the
breach of trust and bad faith (Imperial vs. CA, 259 SCRA
65). Of course, if the buyer knew of the co-ownership over the
lot he was buying, Juana can seek (c) reconvenyance of her
one-half share instead but she must implead the buyer as co-
defendant and allege his bad faith in purchasing the entire lot.
Finally, consistent with the ruling in Imperial us. CA. Juana
may seek instead (d) a declaration that she is now the sole
owner of the entire remaining lot on the theory that Juan has
forfeited his one-half share therein.
ADDITIONAL ANSWER:
1. Juana can file an action for damages against Juan for
having fraudulently sold one of the two parcels which he partly
held in trust for Juana's benefit. Juana may claim actual or
compensatory damage for the loss of her share in the land;
moral damages for the mental anguish, anxiety, moral shock
and wounded feelings she had suffered; exemplary damage by
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
way of example for the common good, and attorney's fees.
Juana has no cause of action against the buyer who acquired
the land for value and in good faith, relying on the transfer
certificate showing that Juan is the registered owner of the
land.

SUGGESTED ANSWER:
2. Juana's suit to have herself declared as sole owner of
the entire remaining area will not prosper because while Juan's
act in selling the other lot was wrongful. It did not have the
legal effect of forfeiting his share in the remaining lot.
However, Juana can file an action against Juan for partition or
termination of the co-ownership with a prayer that the lot sold
be adjudicated to Juan, and the remaining lot be adjudicated
and reconveyed to her.
ANOTHER ANSWER:
2. The suit will prosper, applying the ruling in Imperial vs. CA
cited above. Both law and equity authorize such a result, said
the Supreme Court.

Strictly speaking, Juana's contention that her brother had

forfeited his share in the second lot is incorrect. Even if the
two lots have the same area, it does not follow that they have
the same value. Since the sale of the first lot on the Torrens
title in the name of Juan was valid, all that Juana may recover is
the value of her undivided interest therein, plus damages. In
addition, she can ask for partition or reconveyance of her
undivided interest in the second lot, without prejudice to any
agreement between them that in lieu of the payment of the
value of Juana's share in the first lot and damages, the second
lot be reconveyed to her.
ALTERNATIVE ANSWER:
2. The suit will not prosper, since Juan's wrongful act of
pocketing the entire proceeds of the sale of the first lot is not a
ground for divesting him of his rights as a co-owner of the
second lot. Indeed, such wrongdoing by Juan does not
constitute, for the benefit of Juana, any of the modes of
acquiring ownership under Art. 712, Civil Code.
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Trust; Implied Resulting Trust (1995)
In 1960, Maureen purchased two lots in a plush subdivision
registering Lot 1 in her name and Lot 2 in the name of her
brother Walter with the latter's consent. The idea was to
circumvent a subdivision policy against the acquisition of
more than one lot by one buyer. Maureen constructed a
house on Lot 1 with an extension on Lot 2 to serve as a guest
house. In 1987, Walter who had suffered serious business
losses demanded that Maureen remove the extension house
since the lot on which the extension was built was his
property. In 1992, Maureen sued for the reconveyance to her
of Lot 2 asserting that a resulting trust was created when she
had the lot registered in Walter's name even if she paid the
purchase price. Walter opposed the suit arguing that assuming
the existence of a resulting trust the action of Maureen has
already prescribed since ten years have already elapsed from
the registration of the title in his name. Decide. Discuss fully.
SUGGESTED ANSWER:
This is a case of an implied resulting trust. If Walter claims to
have acquired ownership of the land by prescription or if he
anchors his defense on extinctive prescription, the ten year
period must be reckoned from 1987 when he demanded that
Maureen remove the extension house on Lot No. 2 because
such demand amounts to an express repudiation of the trust
and it was made known to Maureen. The action for
reconveyance filed in 1992 is not yet barred by prescription.
(Spouses Huang v. Court of Appeals, Sept. 13, 1994).
SALES
Assignment of Credit vs. Subrogation (1993)
Peter Co, a trader from Manila, has dealt business with Allied
Commodities in Hongkong for five years. All through the
years, Peter Co accumulated an indebtedness of P500,000.00
with Allied Commodities. Upon demand by its agent in
Manila, Peter Co paid Allied Commodities by check the
amount owed. Upon deposit in the payee's account in Manila,
the check was dishonored for insufficiency of funds. For and
in consideration of P1.00, Allied Commodities assigned the
credit to Hadji Butu who brought suit against Peter Co in the
RTC of Manila for recovery of the amount owed. Peter Co
moved to dismiss the complaint against him on the ground
that Hadji Butu was not a real party in interest and, therefore,
without legal capacity to sue and that he had not agreed to a
subrogation of creditor. Will Peter Co's defense of absence of
agreement to a subrogation of creditor prosper?
SUGGESTED ANSWER:
No, Co's defense will not prosper. This is not a case of
subrogation, but an assignment of credit. ASSIGNMENT OF
CREDIT is the process of transferring the right of the
assignor to the assignee. The assignment may be done either
gratuitously or onerously, in which case, the assignment has
an effect similar to that of a sale (Nyco Sales Corp.v.BA
Finance Corp. G.R No.71694. Aug.16, 1991 200 SCRA 637). As a
result of the assignment, the plaintiff acquired all the rights of
the assignor including the right to sue in his own name as the
legal assignee. In assignment, the debtor's consent is not
essential for the validity of the assignment
(Art. 1624; 1475. CC; Rodriguez v. CA, et al, G. R No. 84220,
March 25. 1992 207 SCRA 553). ALTERNATIVE
ANSWER:
No, the defense of Peter Co will not prosper. Hadji Butu
validly acquired his right by an assignment of credit under
Article 1624 of the Civil Code. However, the provisions on the
contract of sale (Article 1475 Civil Code) will apply, and the
transaction is covered by the Statute of Frauds. (Art. 1403 par.
(2) Civil Code)
Conditional Sale vs. Absolute Sale (1997)
Distinguish between a conditional sale, on the one hand, and
an absolute sale, on the other hand.
SUGGESTED ANSWER:
A CONDITIONAL SALE is one where the vendor is granted
the right to unilaterally rescind the contract predicated on the
fulfillment or non-fulfillment, as the case may be, of the
prescribed condition. An ABSOLUTE SALE is one where the
title to the property is not reserved to the vendor or if the
vendor is not granted the right to rescind the contract based on
the fulfillment or nonfulfillment, as the case may be, of the
prescribed condition.
Contract of Sale vs. Agency to Sell (1999)
A granted B the exclusive right to sell his brand of Maong pants
in Isabela, the price for his merchandise payable within 60 days
from delivery, and promising B a commission of 20% on all
sales. After the delivery of the merchandise to B but before he
could sell any of them, Bs store in Isabela was completely
burned without his fault, together with all of A's pants. Must B
pay A for his lost pants? Why? (5%)
SUGGESTED ANSWER:
The contract between A and B is a sale not an agency to sell
because the price is payable by B upon 60 days from delivery
even if B is unable to resell it. If B were an agent, he is not
bound to pay the price if he is unable to resell it.
As a buyer, ownership passed to B upon delivery and, under
Art. 1504 of the Civil Code, the thing perishes for the owner.
Hence, B must still pay the price.
Contract of Sale; Marital Community Property;
Formalities
(2006)
Spouses Biong and Linda wanted to sell their house. They
found a prospective buyer, Ray. Linda negotiated with Ray for
the sale of the property. They agreed on a fair price of P2
Million. Ray sent Linda a letter confirming his intention to buy
the property. Later, another couple, Bernie and Elena, offered
a similar house at a lower price of P 1.5 Million. But Ray
insisted on buying the house of Biong and Linda for
sentimental reasons. Ray prepared a deed of sale to be signed
by the couple and a manager's check for P2 Million. After
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
receiving the P2 Million, Biong signed the deed of sale.
However, Linda was not able to sign it because she was abroad.
On her return, she refused to sign the document saying she
changed her mind. Linda filed suit for nullification of the deed
of sale and for moral and exemplary damages against Ray.
Will the suit prosper? Explain. (2.5%) ALTERNATIVE
ANSWER:
No, the suit will not prosper. The contract of sale was
perfected when Linda and Ray agreed on the object of the sale
and the price [Art. 1475, New Civil Code]. The consent of
Linda has already been given, as shown by her agreement to
the price of the sale. There is therefore consent on her part as
the consent need not be given in any specific form. Hence, her
consent may be given by implication, especially since she was
aware of, and participated in the sale of the property
(Pelayo v. CA, G.R. No. 141323, June 8, 2005). Her action for
moral and exemplary damages will also not prosper because the
case does not fall under any of those mentioned in Art.
2219 and 2232 of the Civil Code. ALTERNATIVE
ANSWER:
The suit will prosper. Sale of community property requires
written consent of both spouses. The failure or refusal of Linda
to affix her signature on the deed of sale, coupled with her
express declaration of opposing the sale negates any valid
consent on her part. The consent of Biong by himself is
insufficient to effect a valid sale of community property (Art.
96, Family Code; Abalos v. Macatangay, G.R. No. 155043,
September 30, 2004).
Does Ray have any cause of action against Biong and
Linda? Can he also recover damages from the spouses?
Explain. (2.5%)
Considering that the contract has already been perfected and
taken out of the operation of the statute of frauds, Ray can
compel Linda and Biong to observe the form required by law
in order for the property to be registered in the name of Ray
which can be filed together with the action for the recovery of
house [Art. 1357 New Civil Code]. In the alternative, he can
recover the amount of Two million pesos (P2,000,000.00) that
he paid. Otherwise, it would result in solutio indebiti or unjust
enrichment.
Ray can recover moral damages on the ground that the action
filed by Linda is clearly an unfounded civil suit which falls
under malicious prosecution {Ponce v. Legaspi, G.R. No.
79184, May 6,1992).
Contract to Sell (2001)
Arturo gave Richard a receipt which states:
Receipt Received from Richard as down payment for my
1995 Toyota Corolla with plate No. XYZ-1 23..............
P50.000.00
Balance payable: 12/30/01........ P50 000.00
September 15, 2001.
(Sgd.) Arturo Does this receipt evidence a
contract to sell? Why? (5%) SUGGESTED ANSWER:
It is a contract of sale because the seller did not reserve
ownership until he was fully paid.
Contract to Sell vs. Contract of Sale (1997)
State the basic difference (only in their legal effects) Between a
contract to sell, on the one hand, and a contract of sale, on the
In a CONTRACT OF SALE, ownership is transferred to
other. SUGGESTED ANSWER:
the buyer upon delivery of the object to him while in a
CONTRACT TO SELL, ownership is retained by the seller
until the purchase price is fully paid. In a contract to sell,
delivery of the object does not confer ownership upon the
buyer. In a contract of sale, there is only one contract executed
between the seller and the buyer, while in a contract to sell,
there are two contracts, first the contract to sell (which is a
conditional or preparatory sale) and a second, the final deed of
sale or the principal contract which is executed after full
payment of the purchase price.
Contract to Sell; Acceptance; Right of First Refusal
(1991)
A is the lessee of an apartment owned by Y. A allowed
his married but employed daughter B, whose husband works
in Kuwait, to occupy it. The relationship between Y and A
soured. Since he has no reason at all to eject A, Y, in
connivance with the City Engineer, secured from the latter an
order for the demolition of the building. A immediately filed
an action in the Regional Trial Court to annul the order and to
enjoin its enforcement. Y and A were able to forge a
compromise agreement under which A agreed to a twenty
percent (20%) increase in the monthly rentals. They further
agreed that the lease will expire two (2) years later and that in
the event that Y would sell the property, either A or his
daughter B shall have the right of first refusal. The
Compromise Agreement was approved by the court. Six (6)
months before the expiration of the lease, A died. Y sold the
property to the Visorro Realty Corp. without notifying B. B
then filed an action to rescind the sale in favor of the
corporation and to compel Y to sell the property to her since
under the Compromise Agreement, she was given the right of
first refusal which, she maintains is a stipulation pour atrui
under Article 1311 of the Civil Code. Is she correct?
SUGGESTED ANSWER:
B is not correct. Her action cannot prosper. Article
1311 requires that the third person intended to be benefited
must communicate his acceptance to the obligor before the
revocation. There is no showing that B manifested her
acceptance to Y at any time before the death of A and before
the sale. Hence, B cannot enforce any right under the alleged
stipulation pour atrui.
Double Sales (2001)
On June 15, 1995, Jesus sold a parcel of registered land to
Jaime. On June 30, 1995, he sold the same land to Jose. Who
has a better right if: a) the first sale is registered ahead of the
second sale, with knowledge of the latter. Why? (3%) b) the
second sale is
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
registered ahead of the first sale, with
knowledge of the latter? Why? (5%)
SUGGESTED ANSWER:
(a) The first buyer has the better right if his sale was first to be
registered, even though the first buyer knew of the second sale.
The fact that he knew of the second sale at the time of his
registration does not make him as acting in bad faith because
the sale to him was ahead in time, hence, has a priority in right.
What creates bad faith in the case of double sale of land is
knowledge of a previous sale.
b) The first buyer is still to be preferred, where the second
sale is registered ahead of the first sale but with knowledge of
the latter. This is because the second buyer, who at the time
he registered his sale knew that the property had already been
sold to someone else, acted in bad faith. (Article 1544, C.C.)
Double Sales (2004)
JV, owner of a parcel of land, sold it to PP. But the deed of
sale was not registered. One year later, JV sold the parcel
again to RR, who succeeded to register the deed and to obtain
a transfer certificate of title over the property in his own
name. Who has a better right over the parcel of land, RR or
PP? Why? Explain the legal basis for your answer.
(5%)
SUGGESTED ANSWER:
It depends on whether or not RR is an innocent purchaser for
value. Under the Torrens System, a deed or instrument
operated only as a contract between the parties and as
evidence of authority to the Register of Deeds to make the
registration. It is the registration of the deed or the instrument
that is the operative act that conveys or affects the land. (Sec.
51, P.D. No. 1529).
In cases of double sale of titled land, it is a well-settled rule
that the buyer who first registers the sale in good faith
acquires a better right to the land. (Art. 1544, Civil Code).
Persons dealing with property covered by Torrens title are not
required to go beyond what appears on its face.
(Orquiola v. CA 386, SCRA 301, [2002]; Domingo v. Races 401
SCRA 197, [2003]). Thus, absent any showing that RR knew
about, or ought to have known the prior sale of the land to
PP or that he acted in bad faith, and being first to register the
sale, RR acquired a good and a clean title to the property as
against PP.
Equitable Mortgage
(1991)On 20 December 1970, Juliet, a widow, borrowed
from Romeo P4,000.00 and, as security therefore, she
executed a deed of mortgage over one of her two (2)
registered lots which has a market value of P15,000.00. The
document and the certificate of title of the property were
delivered to Romeo.
On 2 June 1971, Juliet obtained an additional sum of P3,000
from Romeo. On this date, however, Romeo caused the
preparation of a deed of absolute sale of the above property,
to which Juliet affixed her signature without first reading the
document. The consideration indicated is P7,000.00. She
thought that this document was similar to the first she signed.
When she reached home, her son X, after reading the
duplicate copy of the deed, informed her that what she signed
was not a mortgage but a deed of absolute sale. On the
following day, 3 June 1971, Juliet, accompanied by X, went
back to Romeo and demanded the reformation it, Romeo
(2) years, or until 3 June 1973. It is further stated therein
prepared and signed a document wherein, as vendee in the
deed of sale above mentioned, he obligated and bound
himself to resell the land to Juliet or her heirs and successors
for the same consideration as reflected in the deed of sale
(P7,000) within a period of two
that should the Vendor (Juliet) fail to exercise her right to
redeem within the said period, the conveyance shall be
deemed absolute and irrevocable. Romeo did not take
possession of the property. He did not pay the taxes thereon.
Juliet died in January I973 without having repurchased the
property. Her only surviving heir, her son X, failed to
repurchase the property on or before 3 June 1973. In 1975,
Romeo sold the property to Y for P50,000.00. Upon learning
of the sale, X filed an action for the nullification of the sale
and for the recovery of the property on the ground that the
so-called deed of absolute sale executed by his mother was
merely an equitable mortgage, taking into account the
inadequacy of the price and the failure of Romeo to take
possession of the property and to pay the taxes thereon.
Romeo and Y maintain that there was a valid absolute sale
and that the document signed by the former on 3 June 1973
was merely a promise to sell. a) If you were the Judge, would
you uphold the theory of
X? b) If you decide in favor of Romeo and Y, would you
uphold the validity of the promise to sell?
SUGGESTED ANSWER:
A. I will not uphold the theory of X for the nullification
of the sale and for the recovery of the property on the ground
that the so-called sale was only an equitable mortgage. An
equitable mortgage may arise only if, in truth, the sale was one
with the right of repurchase. The facts of the case state that
the right to repurchase was granted after the absolute deed of
sale was executed. Following the rule in Cruzo vs. Carriaga
(174 SCRA 330), a deed of repurchase executed independently
of the deed of sale where the two stipulations are found in
two instruments instead of one document, the right of
repurchase would amount only to one option granted by the
buyer to the seller. Since the contract cannot be upheld as a
contract of sale with the right to repurchase, Art. 1602 of the
Civil Code on equitable mortgage will not apply. The rule
could have been different if both deeds were executed on the
same occasion or date, in which case, under the ruling in
spouses Claravall v. CA (190 SCRA 439), the contract may still
be sustained as an equitable mortgage, given the
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
6245. It appears in the Deed of Sale that Pedro received
from Juan P120,000.00 as purchase price. However, Pedro
retained the owner's duplicate of said title. Thereafter, Juan, as
lessor, and Pedro, as lessee, executed a contract of lease over
the property for a period of one (1) year with a monthly rental
of Pl,000.00. Pedro, as lessee, was also obligated to pay the
realty taxes on the property during the period of lease.
Subsequently, Pedro filed a complaint against Juan for the
reformation of the Deed of Absolute Sale, alleging that the
transaction covered by the deed was an equitable mortgage.
In his verified answer to the complaint, Juan alleged that the
property was sold to him under the Deed of Absolute Sale,
and interposed counterclaims to recover possession of the
property and to compel Pedro to turn over to him the
owner's duplicate of title. Resolve the case with reasons. (6%)
SUGGESTED ANSWER:
The complaint of Pedro against Juan should be dismissed. The
instances when a contract regardless of its nomenclature
may be presumed to be an equitable mortgage are enumerated
in Article 1602 of the Civil Code: "Art. 1602. The contract shall
be presumed to be an equitable mortgage, in any of the
following cases:
1 When the price of a sale with right to repurchase is
unusually inadequate:
2 When the vendor remains in possession as lessee or
otherwise;
3 When upon or after the expiration of the right to
X sold a parcel of land to Y on 01 January 2002, payment
and delivery to be made on 01 February 2002. It was
stipulated that if payment were not to be made by Y on 01
February 2002, the sale between the parties would
automatically be rescinded. Y failed to pay on 01 February
2002, but offered to pay three days later, which payment X
refused to accept, claiming that their contract of sale had
already been rescinded. Is Xs contention correct? Why? 5%
SUGGESTED ANSWER:
No, X is not correct. In the sale of immovable property, even
though it may have been stipulated, as in this case, that upon
failure to pay the price at the time agreed upon the rescission
of the contract shall of right take place, the vendee may pay,
even after the expiration of the period, as long as no demand
for rescission of the contract has been made upon him either
judicially or by a notarial act (Article 1592, New Civil code).
Since no demand for rescission was made on Y, either
judicially or by a notarial act, X cannot refuse to accept the
payment offered by Y three (3) days after the expiration of
the period.
ANOTHER SUGGESTED ANSWER:
This is a contract to sell and not a contract of absolute sale,
since as there has been no delivery of the land. Article 1592 of
the New Civil code is not applicable. Instead, Article 1595 of
the New Civil Code applies. The seller has two alternative
remedies: (1) specific performance, or (2) rescission or
resolution under Article 1191 of the New Civil code. In both
remedies, damages are due because of default.
ALTERNATIVE ANSWER:
Yes, the contract was automatically rescinded upon Ys failure

repurchase another instrument extending the period of redemption to pay on 01 February 2002. By the express terms of the
or granting a new period is executed; contract, there is no need for X to make a demand in order
4 When the purchaser retains for himself a part of the for rescission to take place. (Article 1191, New Civil Code, Suria
purchase price; v. IAC 151 SCRA 661 [1987]; U.P. v. de los
5 When the vendor binds himself to pay the taxes on the Angeles 35 SCRA 102 [1970]).
thing sold; Maceda Law (2000)
6 In any other case where it may be fairly inferred that the
Priscilla purchased a condominium unit in Makati City from
real intention of the parties is that the transaction shall secure the the Citiland Corporation for a price of P10 Million, payable
payment of a debt or the performance of any other obligation.
circumstances expressed in Art. 1602. The reserved right to On July 14, 2004, Pedro executed in favor of Juan a Deed of
repurchase is then deemed an original intention. Absolute Sale over a parcel of land covered by TCT No.
Page 93 of 119
B. If I were to decide in favor of Romeo and Y, I "In any of the foregoing cases, any money, fruits, or other
would not uphold the validity of the promise to sell, so as to benefit to be received by the vendee as rent or otherwise shall
enforce it by an action for specific performance. The promise be considered as interest which shall be subject to the usury
to sell would only amount to a mere offer and, therefore, it is laws."
not enforceable unless it was sought to be exercised before a
withdrawal or denial thereof. Article 1604 states that "the provisions of article 1602 shall also
apply to a contract purporting to be an absolute sale."
Even assuming the facts given at the end of the case, there
would have been no separate consideration for such promise For Articles 1602 and 1604 to apply, two requisites must
to sell. The contract would at most amount to an option concur: 1) the parties entered into a contract denominated as a
which again may not be the basis for an action for specific contract of sale; and 2) their intention was to secure an existing
performance. debt by way of mortgage. (Heirs of Balite v. Lim,
Equitable Mortgage vs. Sale (2005) G.R. No. 152168, December 10, 2004)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
In the given case, although Pedro retained possession of the
property as lessee after the execution of the Deed of Sale, there
is no showing that the intention of the parties was to secure an
existing debt by way of mortgage. Hence, the complaint of
Pedro should be dismissed.
Immovable Property; Rescission of Contract (2003)
P3 Million down and the balance with interest thereon at 14%
per annum payable in sixty (60) equal monthly installments of
P198,333.33. They executed a Deed of Conditional Sale in
which it is stipulated that should the vendee fail to pay three
(3) successive installments, the sale shall be deemed
automatically rescinded without the necessity of judicial action
and all payments made by the vendee shall be forfeited in
favor of the vendor by way of rental for the use and
occupancy of the unit and as liquidated damages. For 46
a) Article 1592 of the Civil Code does not apply to
a
conditional sale. In Valarao v. CA, 304 SCRA 155, the Supreme
Court held that Article 1592 applies only to a contract of sale
and not to a Deed of Conditional Sale where the seller has
reserved title to the property until full payment of the
purchase price. The law applicable is the Maceda Law.
SUGGESTED ANSWER:
b) No, the vendor cannot rescind the contract under the
circumstances. Under the Maceda Law, which is the law
applicable, the seller on installment may not rescind the
contract till after the lapse of the mandatory grace period of
30 days for every one year of installment payments, and
only after 30 days from notice of cancellation or demand
for rescission by a notarial act. In this case, the refusal of
the seller to accept payment from the buyer on the 49th
month was not justified because the buyer was entitled to
60 days grace period and the payment was tendered within
that period. Moreover, the notice of rescission served by
the seller on the buyer was not effective because the notice
was not by a notarial act. Besides, the seller may still pay
within 30 days from such notarial notice before rescission
may be effected. All these requirements for a valid
rescission were not complied with by the seller. Hence, the
rescission is invalid.
Maceda Law; Recto Law (1999)
What are the so-called "Maceda" and "Recto" laws in
connection with sales on installments? Give the most
important features of each law. (5%) SUGGESTED
ANSWER:
The MACEDA LAW (R.A. 655) is applicable to sales of
immovable property on installments. The most important
features are (Rillo v. CA, 247 SCRA 461):
(1) After having paid installments for at least two years,
the buyer is entitled to a mandatory grace period of one
month for every year of installment payments made, to pay
the unpaid installments without interest.
months, Priscilla paid the monthly installments religiously, but
on the 47th and 48th months, she failed to pay. On the 49th
month, she tried to pay the installments due but the vendor
refused to receive the payments tendered by her. The
following month, the vendor sent her a notice that it was
rescinding the Deed of Conditional Sale pursuant to the
stipulation for automatic rescission, and demanded that she
vacate the premises. She replied that the contract cannot be
rescinded without judicial demand or notarial act pursuant to
Article 1592 of the Civil Code. a) Is Article 1592 applicable?
(3%) b) Can the vendor rescind the contract? (2%)
SUGGESTED ANSWER:
Page 94 of 119
If the contract is cancelled, the seller shall refund to the buyer
the cash surrender value equivalent to fifty percent (50%) of
the total payments made, and after five years of installments,
an additional five percent (5%) every year but not to exceed
ninety percent (90%) of the total payments made.
(2) In case the installments paid were less than 2 years,
the seller shall give the buyer a grace period of not less than
60 days. If the buyer fails to pay the installments due at the
expiration of the grace period, the seller may cancel the
contract after 30 days from receipt by the buyer of the notice
of cancellation or demand for rescission by notarial act. The
RECTO LAW (Art. 1484} refers to sale of movables payable
in installments and limiting the right of seller, in case of
default by the buyer, to one of three remedies: a) exact
fulfillment; b) cancel the sale if two or more installments have
not
been paid;
c) foreclose the chattel mortgage on the things sold,
also in case of default of two or more installments, with no
further action against the purchaser.
Option Contract (2002)
Explain the nature of an option contract. (2%) SUGGESTED
ANSWER:
An OPTION CONTRACT is one granting a privilege to buy
or sell within an agreed time and at a determined price. It must
be supported by a consideration distinct from the price. (Art.
1479 and 1482, NCC)
Option Contract; Earnest Money (1993)
LT applied with BPI to purchase a house and lot in Quezon
City, one of its acquired assets. The amount offered was
Pl,000,000.00 payable, as follows: P200,000.00 down payment,
the balance of P800,000.00 payable within 90 days from June 1,
1985. BPI accepted the offer, whereupon LT drew a check for
P200,000.00 in favor of BPI which the latter thereafter
deposited in its account. On September 5, 1985, LT wrote BPI
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
requesting extension until October 10, 1985 within which to
pay the balance, to which BPI agreed. On October 5, 1985, due
to the expected delay in the remittance of the needed amount
by his financier from the United States, LT wrote BPI
requesting a last extension until October 30, 1985, within which
to pay the balance. BPI denied LTs request because another had
offered to buy the same property for P1,500,000.00. BPI
cancelled its agreement with LT and offered to return to him
the amount of P200,000.00 that LT had paid to it. On October
20, 1985, upon receipt of the amount of P800,000.00 from his
US financier, LT offered to pay the amount by tendering a
cashier's check therefor but which BPI refused to accept. LT
then filed a complaint against BPI in the RTC for specific
performance and deposited in court the amount of
P800,000.00. Is BPI legally correct in canceling its contract with
LT?
SUGGESTED ANSWER:
BPI is not correct in canceling the contract with LT. In Lina
Topacio v Court of Appeals and BPI Investment (G. R No.
102606, July 3. 1993, 211 SCRA 291) the Supreme Court held that
the earnest money is part of the purchase price and is proof of
the perfection of the contract. Secondly, notarial or judicial
rescission under Art. 1592 and 1991 of the Civil Code
is necessary (Taguba v. de Leon, 132 SCRA 722.) ALTERNATIVE
ANSWER:
BPI is correct in canceling its contract with LT but BPI must
do so by way of judicial rescission under Article 1191 Civil
Code. The law requires a judicial action, and mere notice of
rescission is insufficient if it is resisted. The law also provides
that slight breach is not a ground for rescission (Song Fo & Co,
vs, Hawaiian Phil Co., 47 Phils. 821), Delay in the fulfillment of
the obligation (Art. 1169, Civil Code) is a ground to rescind,
only if time is of the essence. Otherwise, the court may refuse
the rescission if there is a just cause for the fixing of a period.
Perfected Sale; Acceptance of Earnest Money
(2002)
Bert offers to buy Simeons property under the following
terms and conditions: P1 million purchase price, 10% option
money, the balance payable in cash upon the clearance of the
property of all illegal occupants. The option money is promptly
paid and Simeon clears the property of illegal occupants in no
time at all. However, when Bert tenders payment of the
balance and ask Simeon for the deed
for absolute sale, Simeon suddenly has a change of heart,
claiming that the deal is disadvantageous to him as he has
found out that the property can fetch three time the agreed
purchase price. Bert seeks specific performance but Simeon
contends that he has merely given Bert an option to buy and
nothing more, and offers to return the option money which
Bert refuses to accept.
B. Will Berts action for specific performance prosper?
Explain. (4%)
C. May Simeon justify his refusal to proceed with the
sale by the fact that the deal is financially disadvantageous to
him?
Explain. (4%)
SUGGESTED ANSWER:
B. Berts action for specific performance will prosper
because there was a binding agreement of sale, not just an
option contract. The sale was perfected upon acceptance by
Simeon of 10% of the agreed price. This amount is in really
earnest money which, under Art. 1482, shall be considered
as part of the price and as proof of the perfection of the
contract.
(Topacio v. CA, 211 SCRA 291 [1992]; Villongco Realty v.
Bormaheco, 65 SCRA 352 [1975]).
C. Simeon cannot justify his refusal to proceed with the
sale by the fact that the deal is financially disadvantageous to
him. Having made a bad bargain is not a legal ground for
pulling out a biding contract of sale, in the absence of some
actionable wrong by the other party (Vales
v. Villa, 35 Phil 769 [1916]), and no such wrong has been
committed by Bert.
Redemption; Legal; Formalities (2001)
Betty and Lydia were co-owners of a parcel of land. Last
January 31, 2001, when she paid her real estate tax, Betty
discovered that Lydia had sold her share to Emma on
November 10, 2000. The following day, Betty offered to
redeem her share from Emma, but the latter replied that
Betty's right to redeem has already prescribed. Is Emma
correct or not? Why? (5%) SUGGESTED ANSWER:
Emma, the buyer, is not correct. Betty can still enforce her
right of legal redemption as a co-owner. Article 1623 of the
Civil Code gives a co-owner 30 days from written notice of the
sale by the vendor to exercise his right of legal redemption. In
the present problem, the 30-day period for the exercise by
Betty of her right of redemption had not even begun to run
because no notice in writing of the sale appears to have been
given to her by Lydia.
Redemption; Legal; Formalities (2002)
Adela and Beth are co-owners of a parcel of land. Beth sold
her undivided share of the property to Xandro, who promptly
notified Adela of the sale and furnished the latter a copy of the
deed of absolute sale. When Xandro presented the deed for
registration, the register of deeds also notified Adela of the
sale, enclosing a copy of the deed with the notice. However,
Adela ignored the notices. A year later, Xandro filed a petition
for the partition of the property. Upon receipt of summons,
May Adela still exercise her right of redemption? Explain.
Adela immediately tendered the requisite amount for the
redemption. Xandro contends that Adela lost her right of
redemption after the expiration of 30 days from her receipt of
the notice of the sale given by him.
(5%)
SUGGESTED ANSWER:
Yes, Adela may still exercise her right of redemption
notwithstanding the lapse of more than 30 days from notice
of the sale given to her because Article 1623 of the New Civil
Code requires that the notice in writing of the sale must come
from the prospective vendor or vendor as the case may be. In
this case, the notice of the sale was given by the vendee and
the Register of Deeds. The period of 30 days never tolled.
She can still avail of that right.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

ALTERNATIVE ANSWER:
Adela can no longer exercise her right of redemption. As co-
owner, she had only 30 days from the time she received
written notice of the sale which in this case took the form of
a copy of the deed of sale being given to her (Conejero v. CA,
16 SCRA 775 [1966]). The law does not prescribe any
particular form of written notice, nor any distinctive method
for notifying the redemptioner (Etcuban v. CA, 148 SCRA 507
[1987]). So long as the redemptioner was informed in writing,
he has no cause to complain (Distrito v. CA, 197 SCRA 606,
609 [1991]). In fact, in Distrito, a written notice was held
unnecessary where the co-owner had actual knowledge of the
sale, having acted as middleman and being present when the
vendor signed the deed of sale.

Right of First Refusal; Lessee; Effect (1996)

Ubaldo is the owner of a building which has been leased by
Remigio for the past 20 years. Ubaldo has repeatedly assured
Remigio that if he should decide to sell the building, he will
give Remigio the right of first refusal. On June 30, 1994,
Ubaldo informed Remigio that he was willing to sell the
building for P5 Million. The following day, Remigio sent a
letter to Ubaldo offering to buy the building at P4.5 Million.
Ubaldo did not reply. One week later, Remigio received a
letter from Santos informing him that the building has been
sold to him by Ubaldo for P5 Million, and that he will not
renew Remigio's lease when it expires. Remigio filed an action
against Ubaldo and Santos for cancellation of the sale, and to
compel Ubaldo to execute a deed of absolute sale in his
favor, based on his right of first refusal. a) Will the action
prosper? Explain. b) If Ubaldo had given Remigio an option
to purchase the

building instead of a right of first refusal, will your answer

be the same? Explain.

SUGGESTED ANSWER:
No, the action to compel Ubaldo to execute the deed of
absolute sale will not prosper. According to Ang Yu v. Court
of Appeals (238 SCRA 602), the right of first refusal is not
based on contract but is predicated on the provisions of
human relations and, therefore, its violation is predicated on
quasi-delict. Secondly, the right of first refusal implies that the
offer of the person in whose favor that right was given must
conform with the same terms and conditions as those given
to the offeree. In this case, however, Remigio was offering
only P4.5 Million instead of P5 Million.
ALTERNATIVE ANSWER:
No, the action will not prosper. The lessee's right of first
refusal does not go so far as to give him the power to dictate
on the lessor the price at which the latter should sell
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
his property. Upon the facts given, the lessor had sufficiently
complied with his commitment to give the lessee a right of first
refusal when he offered to sell the property to the lessee for P5
Million, which was the same price he got in selling it to Santos.
He certainly had the right to treat the lessee's counter-offer of
a lesser amount as a rejection of his offer to sell at P5 Million.
Thus, he was free to find another buyer upon receipt of such
unacceptable counter-offer (Art. 1319. NCC).
SUGGESTED ANSWER:
Yes, the answer will be the same. The action will not prosper
because an option must be supported by a consideration
separate and distinct from the purchase price. In this case there
is no separate consideration. Therefore, the option may be
withdrawn by Ubaldo at any time. (Art. 1324, NCC)
Right of First Refusal; Lessee; Effect (1998)
In a 20-year lease contract over a building, the lessee is
expressly granted a right of first refusal should the lessor decide
to sell both the land and building. However, the lessor sold the
property to a third person who knew about the lease and in fact
agreed to respect it. Consequently, the lessee brings an action
against both the lessor-seller and the buyer (a) to rescind the
sale and (b) to compel specific performance of his right of first
refusal in the sense that the lessor should be ordered to execute
a deed of absolute sale in favor of the lessee at the same price.
The defendants contend that the plaintiff can neither seek
rescission of the sale nor compel specific performance of a
"mere" right of first refusal. Decide
the case. [5%]
SUGGESTED ANSWER:
The action filed by the lessee, for both rescission of the
offending sale and specific performance of the right of first
refusal which was violated, should prosper. The ruling in
Equatorial Realty Development, Inc. vs. Mayfair Theater, Inc.
(264 SCRA 483), a case with similar facts, sustains both rights
of action because the buyer in the subsequent sale knew the
existence of right of first refusal, hence in bad faith.
ANOTHER ANSWER:
The action to rescind the sale and to compel the right to first
refusal will not prosper. (Ang Yu Asuncion vs. CA, 238 SCRA
602). The Court ruled in a unanimous en banc decision that the
right of first refusal is not founded upon contract but on a
quasi-delictual relationship covered by the principles of human
relations and unjust enrichment (Art. 19, et seq. Civil Code).
Hence the only action that will prosper according to the
Supreme Court is an "action for damages in a proper forum for
the purpose."
Right of Repurchase (1993)
On January 2, 1980, A and B entered into a contract whereby
A sold to B a parcel of land for and in consideration of
P10.000.00. A reserving to himself the right to repurchase the
same. Because they were friends, no period was agreed upon
for the repurchase of the property. 1) Until when must A
exercise his right of repurchase? 2) If A fails to redeem the
property within the allowable period, what would you advise
B to do for his better protection?
SUGGESTED ANSWER:
1) A can exercise his right of repurchase within four (4) years
from the date of the contract (Art. 1606, Civil Code).
SUGGESTED ANSWER:
2} I would advise B to file an action for consolidation of title
and obtain a judicial order of consolidation which must be
recorded in the Registry of Property (Art. 1607. Civil Code).
Transfer of Ownership; Non-Payment of the Price
(1991)
Pablo sold his car to Alfonso who issued a postdated check in
full payment therefor. Before the maturity of the check,
Alfonso sold the car to Gregorio who later sold it to Gabriel.
When presented for payment, the check issued by Alfonso
was dishonored by the drawee bank for the reason that he,
Alfonso, had already closed his account even before he issued
his check. Pablo sued to recover the car from Gabriel alleging
that he (Pablo) had been unlawfully deprived of it by reason
of Alfonso's deception. Will the suit prosper?
SUGGESTED ANSWER:
No. The suit will not prosper because Pablo was not
unlawfully deprived of the car although he was unlawfully
deprived of the price. The perfection of the sale and the
delivery of the car was enough to allow Alfonso to have a
right of ownership over the car, which can be lawfully
transferred to Gregorio. Art. 559 applies only to a person who
is in possession in good faith of the property, and not to the
owner thereof. Alfonso, in the problem, was the owner, and,
hence, Gabriel acquired the title to the car.
Non-payment of the price in a contract of sale does not
render ineffective the obligation to deliver. The obligation to
deliver a thing is different from the obligation to pay its price.
EDCA Publishing Co. v. Santos (1990)
Transfer of Ownership; Risk of Loss (1990)
D sold a second-hand car to E for P150,000.00 The
agreement between D and E was that half of the purchase
price, or P75,000.00, shall be paid upon delivery of the car to
E and the balance of P75,000.00 shall be paid in five equal
monthly installments of P15,000.00 each. The car was
delivered to E, and E paid the amount of P75.000.00 to D.
Less than one month thereafter, the car was stolen from E's
garage with no fault on E's part and was never recovered. Is E
legally bound to pay the said unpaid balance of P75.000.00?
Explain your answer.
SUGGESTED ANSWER:
Yes, E is legally bound to pay the balance of P75,000.00. The
ownership of the car sold was acquired by E from the
moment it was delivered to him. Having acquired ownership,
E bears the risk of the loss of the thing under the doctrine of
res perit domino. [Articles 1496. 1497, Civil Code).
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
LEASE
Extinguishment; Total Distruction; Leased
Property (1993)
A is the owner of a lot on which he constructed a building in
the total cost of P10,000,000.00. Of that amount B
contributed P5,000,000.00 provided that the building as a
whole would be leased to him (B) for a period of ten years from
January 1. 1985 to December 31, 1995 at a rental of
P100,000.00 a year. To such condition, A agreed. On
December 20, 1990, the building was totally burned. Soon
thereafter, A's workers cleared the debris and started
construction of a new building. B then served notice upon A
that he would occupy the building being constructed upon
completion, for the unexpired portion of the lease term,
explaining that he had spent partly for the construction of the
building that was burned. A rejected B's demand. Did A has a
right in rejecting B's demand?
SUGGESTED ANSWER:
Yes. A was correct in rejecting the demand of B. As a result
of the total destruction of the building by fortuitous event,
the lease was extinguished. (Art. 1655, Civil Code.)
Implied New Lease (1999)
Under what circumstances would an implied new lease or a
tacita reconduccion arise? (2%) SUGGESTED
ANSWER:
An implied new lease or tacita reconduccion arises if at the
end of the contract the lessee should continue enjoying the
thing leased for 15 days with the acquiescence of the lessor,
and unless a notice to the contrary by either parties has
previously been given (Art. 1670). In short, in order that there
may be tacita reconduccion there must be expiration of the
contract; there must be continuation of possession for 15 days
or more; and there must be no prior demand to vacate.
Lease of Rural Lands (2000)
In 1995, Mark leased the rice land of Narding in Nueva Ecija
for an annual rental of P1,000.00 per hectare. In 1998, due to
the El Nino phenomenon, the rice harvest fell to only 40% of
the average harvest for the previous years. Mark asked
Narding for a reduction of the rental to P500.00 per hectare
for that year but the latter refused. Is Mark legally entitled to
such reduction? (2%)
SUGGESTED ANSWER:
No, Mark is not entitled to a reduction. Under Article 1680 of
the Civil Code, the lessee of a rural land is entitled to a
reduction of the rent only in case of loss of more than 1/2 of
the fruits through extraordinary and unforeseen fortuitous
events. While the drought brought about by the "El Nino"
phenomenon may be classified as extraordinary, it is not
considered as unforeseen.
ALTERNATIVE ANSWER:
Yes, Mark is entitled to a reduction of the rent. His loss was more
than 1/2 of the fruits and the loss was due to an extraordinary and
unforeseen fortuitous event. The "El Nino" phenomenon is
extraordinary because it is uncommon; it does not occur with
regularity. And neither could the parties have foreseen its
occurrence. The event should be foreseeable by the parties so that
the lessee can change the time for his planting, or refrain from
planting, or take steps to avoid the loss. To be foreseeable, the time
and the place of the occurrence, as well as the magnitude of the
adverse effects of the fortuitous event must be capable of being
predicted. Since the exact place, the exact time, and the exact
magnitude of the adverse effects of the "El Nino"
phenomenon are still unpredictable despite the advances in
science, the phenomenon is considered unforeseen.
Leasee & Lessor; Rights and Obligations (1990)
A vacant lot several blocks from the center of the town was
leased by its owner to a young businessman B for a term of
fifteen (15) years renewal upon agreement of the parties. After
taking possession of the lot, the lessee built thereon a building
of mixed materials and a store. As the years passed, he
expanded his business, earning more profits. By the tenth
(10th) year of his possession, he was able to build a three (3)-
story building worth at least P300,000.00. Before the end of
the term of the lease, B negotiated with the landowner for its
renewal, but despite their attempts to do so, they could not
agree on the new conditions for the renewal. Upon the
expiration of the term of the lease, the landowner asked B to
vacate the premises and remove his building and other
improvements. B refused unless he was reimbursed for
necessary and useful expenses. B claimed that he was a
possessor and builder in good faith, with right of retention.
This issue is now before the court for resolution in a pending
litigation. a) What are the rights of B? b) What are the rights
of the landowner?
SUGGESTED ANSWER:
a) B has the right to remove the building and other
improvements unless the landowner decides to retain the
building at the time of the termination of the lease and pay
the lessee one-half of the value of the improvements at that
time. The lessee may remove the building even though the
principal thing may suffer damage but B should not cause any
more impairment upon the property leased than is necessary.
The claim of B that he was a possessor and builder in good
faith with the right of retention is not tenable. B is not a
builder in good faith because as lessee he does not claim
ownership over the property leased.
SUGGESTED ANSWER:
b) The landowner/lessor may refuse to reimburse 1/2
of the value of the improvements and require the lessee to
remove the improvements. [Article 1678, Civil Code),
Leasee; Death Thereof; Effects (1997)
Stating briefly the thesis to support your answer to each of the
following cases, will the death - a) of the lessee extinguish the
lease agreement?
SUGGESTED ANSWER:
No. The death of the lessee will not extinguish the lease
agreement, since lease is not personal in character and the
right is transmissible to the heirs. (Heirs of Dimaculangan vs.
IAC, 170 SCRA 393).
Option to Buy; Expired (2001)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
On January 1, 1980, Nestor leased the fishpond of Mario for a
period of three years at a monthly rental of P1,000.00, with an
option to purchase the same during the period of the lease for
the price of P500,000.00. After the expiration of the three-
year period, Mario allowed Nestor to remain in the leased
premises at the same rental rate. On June 15, 1983, Nestor
tendered the amount of P500,000.00 to Mario and demanded
that the latter execute a deed of absolute sale of the fishpond
in his favor. Mario refused, on the ground that Nestor no
longer had an option to buy the fishpond.
Nestor filed an action for specific performance. Will the
action prosper or not? Why? (5%) SUGGESTED
ANSWER:
No, the action will not prosper. The implied renewal of the
lease on a month-to-month basis did not have the effect of
extending the life of the option to purchase which expired at
the end of the original lease period. The lessor is correct in
refusing to sell on the ground that the option had expired.
Sublease vs. Assignment of Lease; Rescission of
Contract
(2005)
Under a written contract dated December 1, 1989, Victor
leased his land to Joel for a period of five (5) years at a
monthly rental of Pl,000.00, to be increased to Pl,200.00 and
Pl,500.00 on the third and fifth year, respectively. On January
1, 1991, Joel subleased the land to Conrad for a period of two
(2) years at a monthly rental of Pl,500.00.
On December 31, 1992, Joel assigned the lease to his
compadre, Ernie, who acted on the belief that Joel was the
rightful owner and possessor of the said lot. Joel has been
faithfully paying the stipulated rentals to Victor. When Victor
learned on May 18, 1992 about the sublease and assignment,
he sued Joel, Conrad and Ernie for rescission of the contract
of lease and for damages.
a) Will the action prosper? If so, against whom?
Explain. (2%)
SUGGESTED ANSWER:
Yes, the action of for rescission of the contract of lease and for
damages will prosper. Under Article 1659 of the Civil Code, "if the
lessor or the lessee should not comply with the obligations set forth
in Articles 1654 and 1657, the aggrieved party may ask for rescission
of the contract and indemnification for damages, or only the latter,
allowing the contract to remain in force." Article 1649 of the same
Code provides that "the lessee cannot assign the lease without the
consent of the lessor, unless there is a stipulation to the contrary."
Consent is necessary because assignment would cause novation by
the substitution of one of the parties.
(Bangayan v. Court of Appeals, G.R. No. 123581, August 29,
1997) However, the rule is different in the case of subleasing.
When there is no express prohibition in the Contract of Lease,
the lessee may sublet the thing leased. (Art. 1650, Civil Code)
In the given case, when Joel assigned the lease to Ernie, the
same was done without the consent of Victor. The assignment
is void. However, there is no indication that in the written
contract of lease between Victor and Joel, that subleasing the
premises is prohibited. Hence, the sublease of Joel with
Conrad is valid. In view of the foregoing, Victor can file the
case of rescission and damages only against Joel and Ernie but
he cannot include Conrad.
b) In case of rescission, discuss the rights and
obligations of the parties. (2%) SUGGESTED
ANSWER:
Rescission of the lease necessarily requires the return of the thing
sublessee can invoke no right superior to that of his
to the lessor. Hence, the judgment granting rescission of the
contract should also order the lessee to vacate and return the
leased premises to the lessor. However, since the
sublessor, the moment the sublessor is duly ousted from the
premises, the sublessee has no leg to stand on. The sublessee's
right, if any, is to demand reparation for damages from his
sublessor, should the latter be at fault.
(Heirs ofSevilla v. Court of Appeals G.R. No. 49823, February 26,
1992).
Sublease; Delay in Payment of Rentals (1994)
In January 1993, Four-Gives Corporation leased the entire
twelve floors of the GQS Towers Complex, for a period of ten
years at a monthly rental of P3,000,000.00. There is a provision
in the contract that the monthly rentals should be paid within
the first five days of the month. For the month of March, May,
June, October and December 1993, the rentals were not paid
on time with some rentals being delayed up to ten days. The
delay was due to the heavy paper work involved in processing
the checks.
Four-Gives Corporation also subleased five of the twelve
floors to wholly-owned subsidiaries. The lease contract
expressly prohibits the assignment of the lease contract or any
portion thereof. The rental value of the building has increased
by 50% since its lease to Four-Gives Corporation. 1) Can the
building owner eject Four-Gives Corporation on grounds of
the repeated delays in the payment of the rent? 2} Can the
building owner ask for the cancellation of the contract for
violation of the provision against assignment?
SUGGESTED ANSWERS:
1) a) The "repeated delays" in the payment of rentals would, at
best, be a slight or casual breach which does not furnish a
ground for ejectment especially because the delays were only
due to heavy paper work. Note that there was not even a
demand for payment obviously because the delay lasted for
only a few days (10 days being the longest), at the end of which
time payments were presumably made and were accepted.
There was, therefore, no default. Note also that there was no
demand made upon the lessee to vacate the premises for non-
payment of the monthly rent. There is, therefore, no cause of
action for ejectment arising from the "repeated delays".
b) The building owner cannot eject Four-Gives
Corporation on the ground of repeated delays in the payment
of rentals. The delay in the payment of the rentals is minimal
and cannot be made the basis of an ejectment suit. The delay
was due to the heavy paperwork involved in processing the
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
checks. It would be otherwise if the lease contract stated that in
the payment of rentals within the first five days of the month,
time is of the essence or that the lessee will be in delay if he falls
to pay within the agreed period without need of demand. In this
case he can judicially eject the tenant on the ground of lack of
payment of the price stipulated after a demand to vacate,
(Article 1673(2), New Civil Code),
c) No. Resolution of a contract will not be permitted for
a slight or casual breach, but only for such substantial and
fundamental breach as would defeat the very object of the
parties in making the agreement.(Zepeda v. CA, 216 SCRA
the resolution of the A, and that he has not been remiss in the payment of rent.
293]. The delay of ten (10)) days is not such a substantial
contract of lease specially so when the delay was due to the
heavy paperwork in processing the checks.
SUGGESTED ANSWER:
2) a) No. Sublease is different from assignment of lease.
Sublease, not being prohibited by the contract of lease is
therefore allowed and cannot be invoked as a ground to
cancel the lease,
b) No, the lessor cannot have the lease cancelled for alleged
violation of the provision against assignment. The lessee did
not assign the lease, or any portion thereof, to the
subsidiaries. It merely subleased some floors to its
subsidiaries. Since the problem does not state that the
contract of lease contains a prohibition against sublease, the
sublease is lawful, the rule being that in the absence of an
express prohibition a lessee may sublet the thing leased, in
whole or in part, without prejudice to his/its responsibility to
the lessor for the performance of the contract.
Sublease; Sublessee; Liability (1999)
May a lessee sublease the property leased without the consent
of the lessor, and what are the respective liabilities of the
lessee and sub-lessee to the lessor in case of such sublease?
(3%) SUGGESTED
ANSWER:
Yes, provided that there is no express prohibition against
subleasing. Under the law, when in the contract of lease of
things there is no express prohibition, the lessee may sublet
the thing leased without prejudice to his responsibility for the
performance of the contract toward the lessor. [Art, 1650) In
case there is a sublease of the premises being leased, the
sublessee is bound to the lessor for all the acts which refer to
the use and preservation of the thing leased in the manner
stipulated between the lessor and the lessee. (Art. 1651} The
sublessee is subsidiarily liable to the lessor for any rent due
from the lessee. However, the sublessee shall not be
responsible beyond the amount of the rent due from him.
(Art. 1652) As to the lessee, the latter shall still be responsible
to the lessor for the rents; bring to the knowledge of the
lessor every usurpation or untoward act which any third
person may have committed or may be openly preparing to
carry out upon the thing leased; advise the owner the need for
all repairs; to return the thing leased upon the termination of
the lease just as he received it, save what has been lost or
impaired by the lapse of time or by ordinary wear and tear or
from an inevitable cause; responsible for the deterioration or
loss of the thing leased, unless he proves that it took place
without his fault.
Sublease; Sublessee; Liability (2000)
and fundamental breach to warrant
A leased his house to B with a condition that the
leased premises shall be used for residential
purposes only. B subleased the house to C who used
it as a warehouse for fabrics. Upon learning this, A
demanded that C stop using the house as a
warehouse, but C ignored the demand, A then filed
an action for ejectment against C, who raised the
defense that there is no privity of contract between
him and
Will the action prosper? (3%)
SUGGESTED ANSWER:
Yes, the action will prosper. Under Article 1651 of the Civil
Code, the sublessee is bound to the lessor for all acts which
refer to the use and preservation of the thing leased in the
manner stipulated between the lessor and the lessee.
Sublease; Validity; Assignment of Sublease (1990)
A leased a parcel of land to B for a period of two years. The
lease contract did not contain any express prohibition against
the assignment of the leasehold or the subleasing of the leased
premises. During the third year of the lease, B subleased the
land to C. In turn, C, without A's consent, assigned the sublease
to D. A then filed an action for the rescission of the contract
of lease on the ground that B has violated the terms and
conditions of the lease agreement. If you were the judge, how
would you decide the case, particularly with respect to the
validity of:
(a) B's sublease to C? and (b) C's
assignment of the sublease to D?
SUGGESTED ANSWER:
(a) B's sublease to C is valid. Although the original
period of two years for the lease contract has expired, the lease
continued with the acquiescence of the lessor during the third
year. Hence, there has been an implied renewal of the contract
of lease. Under Art. 1650 of the Civil Code, the lessee may
sublet the thing leased, in whole or in part, when the contract
of lease does not contain any express prohibition. [Articles
1650, 1670 Civil Code). A's action for rescission should not
prosper on this ground.
SUGGESTED ANSWER:
(b) C's assignment of the sublease to D is not valid.
Under Art. 1649, of the Civil Code, the lessee cannot assign the
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
lease without the consent of the lessor, unless there is a
stipulation to the contrary. There is no such stipulation in the
contract. If the law prohibits assignment of the lease without
the consent of the lessor, all the more would the assignment of
a sublease be prohibited without such consent. This is a
violation of the contract and is a valid ground for rescission by
A.
COMMON CARRIERS
Extraordinary Diligence (2000)
Despite a warning from the police that an attempt to hijack a
PAL plane will be made in the following week, the airline did
not take extra precautions, such as frisking of passengers, for
fear of being accused of violating human rights. Two days later,
an armed hijacker did attempt to hijack a PAL flight to Cebu.
Although he was subdued by the other passengers, he managed
to fire a shot which hit and killed a female passenger. The
victim's parents sued the airline for breach of contract, and the
airline raised the defense of force majeure. Is the airline liable
or not? (2%)
SUGGESTED ANSWER:
The airline is liable. In case of death of a passenger, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed
extraordinary diligence (Article 1756, Civil Code). The
failure of the airline to take extra precautions despite a
police warning that an attempt to hijack the plane would be
made, was negligence on the part of the airline. Being
negligent, it is liable for the death of the passenger. The
defense of force majeure is not tenable since the shooting
incident would not have happened had the airline taken steps
that could have prevented the hijacker from boarding the
plane.
ALTERNATIVE ANSWER:
Under Article 1763 of the Civil Code, the common carrier is
not required to observe extraordinary diligence in preventing
injury to its passengers on account of the willful acts or
negligence of other passengers or of strangers. The common
carrier, in that case, is required to exercise only the diligence of
a good father of a family; hence, the failure of the airline to take
EXTRA precautions in frisking the passengers and by leaving
that matter to the security personnel of the airport, does not
constitute a breach of that duty so as to make the airline liable.
Besides, the use of irresistible force by the hijackers was farce
majeure that could not have been prevented even by the
observance of extraordinary diligence.
AGENCY
Agency (2003)
Jo-Ann asked her close friend, Aissa, to buy some groceries
for her in the supermarket. Was there a nominate contract
entered into between Jo-Ann and Aissa? In the affirmative,
what was it? Explain. 5% SUGGESTED
ANSWER:
Yes, there was a nominate contract. On the assumption that
Aissa accepted the request of her close friend Jo-Ann to but
some groceries for her in the supermarket, what they entered
into was a nominate contract of Agency. Article 1868 of the
New Civil Code provides that by the contract of agency a
person binds himself to render some service or to do
something in representation or on behalf of another, with the
consent or authority of the latter.
ALTERNATIVE ANSWER:
Yes, they entered into a nominate contract of lease to service
in the absence of a relation of principal and agent between
them (Article 1644, New Civil Code).
Agency vs. Sale (2000)
A foreign manufacturer of computers and a Philippine
distributor entered into a contract whereby the distributor
agreed to order 1,000 units of the manufacturer's computers
every month and to resell them in the Philippines at the
manufacturer's suggested prices plus 10%. All unsold units at
the end of the year shall be bought back by the manufacturer
at the same price they were ordered. The manufacturer shall
hold the distributor free and harmless from any claim for
defects in the units. Is the agreement one for sale or agency?
(5%)
SUGGESTED ANSWER:
The contract is one of agency, not sale. The notion of sale is
negated by the following indicia: (1) the price is fixed by the
negate sale because they indicate that ownership over the
manufacturer with the 10% mark-up constituting the commission; (2)
the manufacturer reacquires the unsold units at exactly the same
price; and (3) warranty for the units was borne by the manufacturer.
The foregoing indicia
units was never intended to transfer to the distributor.
Agency; coupled with an interest (2001)
Richard sold a large parcel of land in Cebu to Leo for P100
million payable in annual installments over a period of ten
years, but title will remain with Richard until the purchase
price is fully paid. To enable Leo to pay the price, Richard
gave him a power-of-attorney authorizing him to subdivide
the land, sell the individual lots, and deliver the proceeds to
Richard, to be applied to the purchase price. Five years later,
Richard revoked the power of attorney and took over the
sale of the subdivision lots himself. Is the revocation valid or
not? Why? (5%)
SUGGESTED ANSWER:
The revocation is not valid. The power of attorney given to
the buyer is irrevocable because it is coupled with an interest:
the agency is the means of fulfilling the obligation of the
buyer to pay the price of the land (Article 1927, CC). In other
words, a bilateral contract (contract to buy and sell the land) is
dependent on the agency.
Agency; Guarantee Commission (2004)
As an agent, AL was given a guarantee commission, in
addition to his regular commission, after he sold 20 units of
refrigerators to a customer, HT Hotel. The customer,
however, failed to pay for the units sold. ALs principal,
DRBI, demanded from AL payment for the customers
accountability. AL objected, on the ground that his job was
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

only to sell and not to collect payment for units bought by the
customer. Is ALs objection valid? Can DRBI collect from
him or not? Reason. (5%)

SUGGESTED ANSWER:
No, AL's objection is not valid and DRBI can collect from
AL. Since AL accepted a guarantee commission, in addition to
his regular commission, he agreed to bear the risk of
collection and to pay the principal the proceeds of the sale on
the same terms agreed upon with the purchaser (Article 1907,
Civil Code)

Agency; Real Estate Mortgage (2004)

CX executed a special power of attorney authorizing DY to
secure a loan from any bank and to mortgage his property
covered by the owners certificate of title. In securing a loan
from MBank, DY did not specify that he was acting for CX in
the transaction with said bank. Is CX liable for the bank loan?
Why or why not? Justify your answer. (5%)

SUGGESTED ANSWER:
CX is liable for the bank loan because he authorized the
mortgage on his property to secure the loan contracted by
DY. If DY later defaults and fails to pay the loan, CX is liable
to pay. However, his liability is limited to the extent of the
value of the said property. ALTERNATIVE ANSWER: CX
is not personally liable to the bank loan because it was
contracted by DY in his personal capacity. Only the property
of CX is liable. Hence, while CX has authorized the mortgage
on his property to secure the loan of DY, the bank cannot sue
CX to collect the loan in case DY defaults thereon. The bank
can only foreclose the property of CX.
CIVIL LAW (Year 1990-2006)
Answers to the BAR as Arranged by Topics
And if the proceeds of the foreclosure are not sufficient to
pay the loan in full, the bank cannot run after CX for the
deficiency.
ALTERNATIVE ANSWER:
While as a general rule the principal is not liable for the
contract entered into by his agent in case the agent acted in his
own name without disclosing his principal, such rule does not
apply if the contract involves a thing belonging to the principal.
In such case, the principal is liable under Article 1883 of the
Civil Code. The contract is deemed made on his behalf (Sy-
juco v. Sy-juco 40 Phil. 634 [1920]).
ALTERNATIVE ANSWER:
CX would not be liable for the bank loan. CX's property would
also not be liable on the mortgage. Since DY did not specify
that he was acting for CX in the transaction with the bank, DY
in effect acted in his own name. In the case of Rural Bank of
Bombon v. CA, 212 SCRA, (1992), the Supreme Court, under
the same facts, ruled that "in order to bind the principal by a
mortgage on real property executed by an agent, it must upon
its face purport to be made, signed and sealed in the name of
the principal, otherwise, it will bind the agent only. It is not
enough merely that the agent was in fact authorized to make
the mortgage, if he, has not acted in the name of the principal.
Neither is it ordinarily sufficient that in the mortgage the agent
describes himself as acting by virtue of a power of attorney, if
in fact the agent has acted in his own name and has set his own
hand and seal to the mortgage. There is no principle of law by
which a person can become liable on a real estate mortgage
which she never executed in person or by attorney in fact".
Appointment of Sub-Agent (1999)
X appoints Y as his agent to sell his products in Cebu City. Can
Y appoint a sub-agent and if he does, what are the
effects of such appointment? (5%) SUGGESTED
ANSWER:
Yes, the agent may appoint a substitute or sub-agent if the
principal has not prohibited him from doing so, but he shall be
responsible for the acts of the substitute: (1) when he was not
given the power to appoint one; (2) when he was given such
power, but without designating the person, and the person
appointed was notoriously incompetent or insolvent.
General Agency vs. Special Agency (1992)
A as principal appointed B as his agent granting him
general and unlimited management over A's properties, stating
that A withholds no power from B and that the agent may
execute such acts as he may consider appropriate.
Accordingly, B leased A's parcel of land in Manila to C for four
(4) years at P60,000.00 per year, payable annually in advance.
B leased another parcel of land of A in Caloocan City
to D without a fixed term at P3,000.00 per month payable
monthly.
B sold to E a third parcel of land belonging to A located in
Quezon City for three (3) times the price that was listed in the
inventory by A to B.
All those contracts were executed by B while A was
confined due to illness in the Makati Medical Center. Rule on
the validity and binding effect of each of the above contracts
upon A the principal. Explain your answers, SUGGESTED
ANSWER:
The agency couched in general terms comprised only acts of
administration (Art. 1877, Civil Code). The lease contract on
the Manila parcel is not valid, not enforceable and not binding
upon A. For B to lease the property to C, for more than one
(1) year, A must provide B with a special power of attorney
(Art. 1878. Civil Code).
The lease of the Caloocan City property to D is valid and
binding upon A. Since the lease is without a fixed term, it is
understood to be from month to month, since the rental is
payable monthly (Art. 1687, Civil Code).
The sale of the Quezon City parcel to E is not valid and not
binding upon A. B needed a special power of attorney to validly
sell the land (Arts. 1877 and 1878, Civil Code). The sale of the
land at a very good price does not cure the defect of the
contract arising from lack of authority
Powers of the Agent (1994)
Prime Realty Corporation appointed Nestor the exclusive
agent in the sale of lots of its newly developed subdivision.
Prime Realty told Nestor that he could not collect or receive
payments from the buyers. Nestor was able to sell ten lots to
Jesus and to collect the down payments for said lots. He did
not turn over the collections to Prime Realty. Who shall bear
the loss for Nestor's defalcation, Prime Realty or Jesus?
SUGGESTED ANSWER:
a) The general rule is that a person dealing with an agent
must inquire into the authority of that agent. In the present
case, if Jesus did not inquire into that authority, he is liable for
the loss due to Nestor's defalcation unless Article 1900, Civil
Code governs, in which case the developer corporation bears
the loss.
Art. 1900 Civil Code provides: "So far as third persons are
concerned, an act is deemed to have been performed within
the scope of the agent's authority, if such act is within the terms
of the power of attorney, as written, even if the agent has in
fact exceeded the limits of his authority according to an
understanding between the principal and the agent.
However, if Jesus made due inquiry and he was not informed
by the principal Prime Realty of the limits of Nestor's
authority. Prime Realty shall bear the loss.
b) Considering that Prime Realty Corporation only
"told" Nestor that he could not receive or collect payments, it
appears that the limitation does not appear in his written
authority or power of attorney. In this case, insofar as Jesus,
who is a third person is concerned, Nestor's acts of collecting
payments is deemed to have been performed within the scope
of his authority {Article 1900. Civil Code). Hence, the
principal is liable.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
However, if Jesus was aware of the limitation of Nestor's
power as an agent, and Prime Realty Corporation does not
Answers to the BAR as Arranged by Topics
ratify the sale contract, then Jesus shall be liable (Article
1898. Civil Code).
Termination; Effect of Death of Agent (1997)
Stating briefly the thesis to support your answer to each of the
following cases, will the death - (c) of an agent end an agency?
SUGGESTED ANSWER:
Yes. The death of an agent extinguishes the agency, by express
provision of par. 3, Art 1919 of the Civil Code.
PARTNERSHIP
Composition of Partnerships; Spouses;
Corporations (1994)
1) Can a husband and wife form a limited partnership
to engage in real estate business, with the wife being a limited
partner?
2) Can two corporations organize a general partnership
under the Civil Code of the Philippines? 3) Can a corporation
and an individual form a general partnership?
SUGGESTED ANSWER:
1) a) Yes. The Civil Code prohibits a husband and wife
from constituting a universal partnership. Since a limited
partnership is not a universal partnership, a husband and wife
may validly form one. b) Yes. While spouses cannot enter
into a universal partnership, they can enter into a limited
partnership or be members thereof (CIR u. Suter, etal. 27
SCRA 152).
SUGGESTED ANSWER:
2) a) No, A corporation is managed by its board of
directors. If the corporation were to become a partner, co-
partners would have the power to make the corporation party
to transactions in an irregular manner since the partners are
not agents subject to the control of the Board of Directors.
But a corporation may enter into a joint venture with another
corporation as long as the nature of the venture is in line with
the business authorized by its charter. (Tuason & Co., Inc. v.
Bolano, 95 Phil. 106).
b) As a general rule a corporation may not form a
general partnership with another corporation or an individual
because a corporation may not be bound by persons who are
neither directors nor officers of the corporation.
However, a corporation may form a general partnership with
another corporation or an individual provided the following
conditions are met:
1) The Articles of Incorporation of the corporation
expressly allows the corporation to enter into
partnerships;
2) The Articles of Partnership must provide that all
partners will manage the partnership, and they shall be
jointly and severally liable; and
3) In case of a foreign corporation, it must be licensed
to do business in the Philippines.
c) No. A corporation may not be a general partner
because the principle of mutual agency in general partnership
allowing the other general partner to bind the corporation
will violate the corporation law principle that only the board
of directors may bind the corporation.
SUGGESTED ANSWER:
3) No, for the same reasons given in the Answer to Number 2
above.
Conveyance of a Partners Share Dissolution
(1998)
Dielle, Karlo and Una are general partners in a merchandising
firm. Having contributed equal amounts to the capital, they also
agree on equal distribution of whatever net profit is realized per
fiscal period. After two years of operation, however, Una
conveys her whole interest in the partnership to Justine, without
the knowledge and consent of Dielle and Karlo.
1. Is the partnership dissolved?
122. What are the rights o%] f Justine, if any, should
she desire to participate in the management of the
partnership and in the distribution of a net profit of
P360.000.00 which was realized
after her purchase of Una's interest? [3%]
SUGGESTED ANSWER:
1. No, a conveyance by a partner of his whole interest
in a partnership does not of itself dissolve the partnership in
the absence of an agreement. (Art. 1813. Civil Code)
SUGGESTED ANSWER:
2. Justine cannot interfere or participate in the
management or administration of the partnership business or
affairs. She may, however, receive the net profits to which Una
would have otherwise been entitled. In this case, P120.000
(Art. 1813, Civil Code)
Dissolution of Partnership (1995)
Pauline, Patricia and Priscilla formed a business partnership for
the purpose of engaging in neon advertising for a term of five
(5) years. Pauline subsequently assigned to Philip her interest
in the partnership. When Patricia and Priscilla learned of the
assignment, they decided to dissolve the partnership before the
expiration of its term as they had an unproductive business
relationship with Philip in the past. On the other hand,
unaware of the move of Patricia and Priscilla but sensing their
negative reaction to his acquisition of Pauline's interest, Philip
simultaneously petitioned for the dissolution of the
partnership.
1. Is the dissolution done by Patricia and Priscilla without
the consent of Pauline or Philip valid? Explain.
2. Does Philip have any right to petition for the dissolution
of the partnership before the expiration of its specified
term? Explain.
SUGGESTED ANSWER:
1, Under Art. 1830 (1) (c) of the NCC, the dissolution by
Patricia and Priscilla is valid and did not violate the contract of
partnership even though Pauline and Philip did not consent
CIVIL LAW (Year 1990-2006)
thereto. The consent of Pauline is not necessary because she
had already assigned her interest to Philip. The consent of
Philip is not also necessary because the assignment to him of
Pauline's interest did not make him a partner, under
Art, 1813 of the NCC.
ALTERNATIVE ANSWER:
Interpreting Art. 1830 (1) (c) to mean that if one of the partners
another the remaining partners may not dissolve the
had assigned his interest on the partnership to partnership, the
dissolution by Patricia and Priscilla without the consent of
Pauline or Philip is not valid.
SUGGESTED ANSWER:
2. No, Philip has no right to petition for dissolution because
he does not have the standing of a partner (Art. 1813 NCC).
Dissolution of Partnership; Termination (1993)
A, B and C formed a partnership for the purpose of
contracting with the Government in the construction of one
of its bridges. On June 30, 1992, after completion of the
project, the bridge was turned over by the partners to the
Government. On August 30, 1992, D, a supplier of materials
used in the project sued A for collection of the indebtedness
to him. A moved to dismiss the complaint against him on the
ground that it was the ABC partnership that is liable for the
debt. D replied that ABC partnership was dissolved upon
completion of the project for which purpose the partnership
was formed. Will you dismiss the complaint against A If you
were the Judge?
SUGGESTED ANSWER:
As Judge, I would not dismiss the complaint against A.
because A is still liable as a general partner for his pro rata
share of 1/3 (Art. 1816, C. C.J. Dissolution of a partnership
caused by the termination of the particular undertaking
specified in the agreement does not extinguish obligations,
which must be liquidated during the "winding up" of the
partnership affairs (Articles 1829 and 1830. par. 1-a, Civil
Code).
Effect of Death of Partner (1997)
Stating briefly the thesis to support your answer to each of
the following cases, will the death - of a partner terminate the
partnership?
SUGGESTED ANSWER:
Yes. The death of a partner will terminate the partnership, by
express provision of par. 5, Art. 1830 of the Civil Code.
Obligations of a Partner (1992)
W, X, Y and Z organized a general partnership with W and X
as industrial partners and Y and Z as capitalist partners. Y
contributed P50,000.00 and Z contributed P20,000.00 to the
common fund. By a unanimous vote of the partners, W and
X were appointed managing partners, without any
specification of their respective powers and duties.
A applied for the position of Secretary and B applied
for the position of Accountant of the partnership.
The hiring of A was decided upon by W and X, but was
opposed by Y and Z.
The hiring of B was decided upon by W and Z, but was
opposed by X and Y.
Who of the applicants should be hired by the partnership?
A should be hired as Secretary. The decision for the hiring
Explain and give your reasons. SUGGESTED
ANSWER:
of A prevails because it is an act of administration which can
be performed by the duly appointed managing partners, W
and X.
B cannot be hired, because in case of a tie in the
decision of the managing partners, the deadlock must be
decided by the partners owning the controlling interest. In
this case, the opposition of X and Y prevails because Y owns
the controlling Interest (Art. 1801, Civil Code).
Obligations of a Partner; Industrial Partner (2001)
Joe and Rudy formed a partnership to operate a car repair
shop in Quezon City. Joe provided the capital while Rudy
contributed his labor and industry. On one side of their shop,
Joe opened and operated a coffee shop, while on the other
side, Rudy put up a car accessories store. May they engage in
such separate businesses? Why? [5%] SUGGESTED
ANSWER:
Joe, the capitalist partner, may engage in the restaurant
business because it is not the same kind of business the
partnership is engaged in. On the other hand, Rudy may not
engage in any other business unless their partnership
expressly permits him to do so because as an industrial
partner he has to devote his full time to the business of the
partnership [Art. 1789, CC).
Commodatum & Mutuum
Commodatum (1993)
A, upon request, loaned his passenger Jeepney to B to enable
B to bring his sick wife from Paniqui. Tarlac to the Philippine
General Hospital in Manila for treatment. On the way back to
Paniqui, after leaving his wife at the hospital, people stopped
the passenger Jeepney. B stopped for them and allowed them
to ride on board, accepting payment from them just as in the
case of ordinary passenger Jeepneys plying their route. As B
was crossing Bamban, there was an onrush of Lahar from Mt
Pinatubo, the Jeep that was loaned to him was wrecked. 1)
What do you call the contract that was entered into by
A and B with respect to the passenger Jeepney that was
loaned by A to B to transport the latter's sick wife to Manila?
2) Is B obliged to pay A for the use of the passenger
jeepney? 3) Is B liable to A for the loss of the
Jeepney?
SUGGESTED ANSWER:
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
1) The contract is called "commodatum". [Art. 1933.
Civil Code). COMMODATUM is a contract by which one of
the parties (bailor) delivers to another (bailee) something not
consumable so that the latter may use it for a certain time and
return it.

2) No, B is not obliged to pay A for the use of the

passenger Jeepney because commodatum is essentially
gratuitous. (Art. 1933. Civil Code]

3) Yes, because B devoted the thing to a purpose

different from that for which it has been loaned (Art. 1942,
par. 2,
Civil Code)
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
ALTERNATIVE ANSWER:
No, because an obligation which consists in the delivery of a
determinate thing shall be extinguished if it should be lost or
destroyed without the fault of the debtor, and before he has
incurred in delay. (Art. 1262. Civil Code)
Commodatum (2005)
Before he left for Riyadh to work as a mechanic, Pedro left his
Adventure van with Tito, with the understanding that the latter
could use it for one year for his personal or family use while
Pedro works in Riyadh. He did not tell Tito that the brakes of
the van were faulty. Tito had the van tuned up and the brakes
repaired. He spent a total amount of P15,000.00. After using
the vehicle for two weeks, Tito discovered that it consumed too
much fuel. To make up for the expenses, he leased it to
Annabelle.
Two months later, Pedro returned to the Philippines and
asked Tito to return the van. Unfortunately, while being
driven by Tito, the van was accidentally damaged by a cargo
truck without his fault.
a) Who shall bear the P15,000.00 spent for the repair of
the van? Explain. (2%)
ALTERNATIVE ANSWER:
Tito must bear the P15,000.00 expenses for the van. Generally,
extraordinary expenses for the preservation of the thing loaned
are paid by the bailor, he being the owner of the thing loaned.
In this case however, Tito should bear the expenses because he
incurred the expenses without first informing Pedro about it.
Neither was the repair shown to be urgent. Under Article 1949
of the Civil Code, bailor generally bears the extraordinary
expenses for the preservation of the thing and should refund
the said expenses if made by the bailee; Provided, The bailee
brings the same to the attention of the bailor before incurring
them, except only if the repair is urgent that reply cannot be
awaited.
ALTERNATIVE ANSWER:
The P15,000.00 spent for the repair of the van should be
borne by Pedro. Where the bailor delivers to the bailee a non-
consummable thing so that the latter may use it for a certain
time and return the identical thing, the contract perfected is a
Contract of Commodatum. (Art. 1933, Civil Code) The bailor
shall refund the extraordinary expenses during the contract for
the preservation of the thing loaned provided the bailee brings
the same to the knowledge of the bailor before incurring the
same, except when they are so urgent that the reply to the
notification cannot be awaited without danger. (Art. 1949 of
the Civil Code)
In the given problem, Pedro left his Adventure van with Tito
so that the latter could use it for one year while he was in
Riyadh. There was no mention of a consideration. Thus, the
contract perfected was commodatum. The amount of
P15,000.00 was spent by Tito to tune up the van and to repair
its brakes. Such expenses are extra-ordinary expenses because
they are necessary for the preservation of the van Thus, the
same should be borne by the bailor, Pedro.
b) Who shall bear the costs for the van's fuel, oil
and other materials while it was with Tito? Explain. (2%)
SUGGESTED ANSWER:
Tito must also pay for the ordinary expenses for the use and
preservation of the thing loaned. He must pay for the
gasoline, oil, greasing and spraying. He cannot ask for
reimbursement because he has the obligation to return the
identical thing to the bailor. Under Article 1941 of the Civil
Code, the bailee is obliged to pay for the ordinary expenses
for the use and preservation of the thing loaned.
c) Does Pedro have the right to retrieve the van
even before the lapse of one year? Explain. (2%)
ALTERNATIVE ANSWER:
No, Pedro does not have the right to retrieve the van before
the lapse of one year. The parties are mutually bound by the
terms of the contract. Under the Civil Code, there are only 3
instances when the bailor could validly ask for the return of
the thing loaned even before the expiration of the period.
These are when: (1) a precarium contract was entered (Article
1947); (2) if the bailor urgently needs the thing (Article 1946);
and (3) if the bailee commits acts of ingratitude (Article 1948).
Not one of the situations is present in this case.
The fact that Tito had leased the thing loaned to Annabelle
would not justify the demand for the return of the thing
loaned before expiration of the period. Under Article 1942 of
the Civil Code, leasing of the thing loaned to a third person
not member of the household of the bailee, will only entitle
bailor to hold bailee liable for the loss of the thing loaned.
ALTERNATIVE ANSWER:
As a rule, Pedro does not have the right to retrieve the van
before the lapse of one year. Article 1946 of the Code
provides that "the bailor cannot demand the return of the
thing loaned till after the expiration of the period stipulated,
or after the accomplishment of the use for which the
commodatum has been constituted. However, if in the
meantime, he should have urgent need of the thing, he may
demand its return or temporary use." In the given problem,
Pedro allowed Tito to use the van for one year. Thus, he
should be bound by the said agreement and he cannot ask for
the return of the car before the expiration of the one year
period. However, if Pedro has urgent need of the van, he may
demand for its return or temporary use.
d) Who shall bear the expenses for the accidental damage
caused by the cargo truck, granting that the truck driver
and truck owner are insolvent? Explain. (2%)
SUGGESTED ANSWER:
Generally, extraordinary expenses arising on the occasion of
the actual use of the thing loaned by the bailee, even if
incurred without fault of the bailee, shall be shouldered
equally by the bailor and the bailee. (Art. 1949 of the Civil
Code). However, if Pedro had an urgent need for the vehicle,
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Tito would be in delay for failure to immediately return the
same, then Tito would be held liable for the extraordinary
expenses.
Commodatum vs. Usufruct (1998)
Distinguish usufruct from commodatum and state whether
these may be constituted over consumable goods. [2%]
SUGGESTED ANSWER:
1. USUFRUCT is a right given to a person (usufructuary) to
enjoy the property of another with the obligation of
preserving its form and substance. (Art. 562. Civil Code)
On the other hand, COMMODATUM is a contract by which
one of the parties (bailor) delivers to another (bailee)
something not consumable so that the latter may use it for a
certain time and return it.
In usufruct the usufructuary gets the right to the use and to
the fruits of the same, while in commodatum, the bailee only
acquires the use of the thing loaned but not its fruits.
Usufruct may be constituted on the whole or a part of the
fruits of the thing. (Art. 564. Civil Code). It may even be
constituted over consumables like money (Alunan v. Veloso,
52 Phil. 545). On the other hand, in commodatum,
consumable goods may be subject thereof only when the
purpose of the contract is not the consumption of the object,
as when it is merely for exhibition. (Art. 1936, Civil Code)
ANOTHER ANSWER:
1. There are several points of distinction between usufruct and
commodatum. Usufruct is constituted by law, by contract, by
testamentary succession, or by prescription (Art. 1933. Civil
Code). Usufruct creates a real right to the fruits of another's
property, while commodatum creates only a purely personal
right to use another's property, and requires a stipulation to
enable the bailee to "make use" of the fruits (Arts. 1939&
1940, Civil Code). Usufruct maybe onerous while
commodatum is always or essentially gratuitous (Arts. 1933 &
1935, Civil Code). The contract constituting usufruct is
consensual, while commodatum is a real contract (perfected
only by delivery of the subject matter thereof). However, both
involve the enjoyment by a person of the property of another,
differing only as to the extent and scope of such enjoyment
[jus fruendi in one and Jus utendi in the other); both may have
as subject matter either an immovable or a movable; and, both
maybe constituted over consumable goods (Arts. 574 & 1936,
Civil Code). A consumable thing may be the subject-matter of
an abnormal usufruct but in a normal usufruct, the subject-
matter may be used only for exhibition. A commodatum of a
consumable thing may be only for the purpose of exhibiting,
not consuming it.
Mutuum vs. Commodatum (2004)
Distinguish briefly but clearly between Mutuum and
commodatum. SUGGESTED ANSWER:
In MUTUUM, the object borrowed must be a consumable
thing the ownership of which is transferred to the borrower
who incurs the obligation to return the same consumable to
the lender in an equal amount, and of the same kind and
quality. In COMMODATUM, the object borrowed is usually
a non-consumable thing the ownership of which is not
transferred to the borrower who incurs the obligation to
return the very thing to the lender.
Mutuum; Interests (2001)
Samuel borrowed P300,000.00 housing loan from the bank at
18% per annum interest. However, the promissory note
contained a proviso that the bank "reserves the right to increase
interest within the limits allowed by law," By virtue of such
proviso, over the objections of Samuel, the bank increased the
interest rate periodically until it reached 48% per annum.
Finally, Samuel filed an action questioning the right of the bank
to increase the interest rate up to 48%. The bank raised the
defense that the Central Bank of the Philippines had already
suspended the Usury Law. Will the
action prosper or not? Why? (5%) SUGGESTED
ANSWER:
The action will prosper. While it is true that the interest ceilings
set by the Usury Law are no longer in force, it has been held
that PD No. 1684 and CB Circular No. 905 merely allow
contracting parties to stipulate freely on any adjustment in the
interest rate on a loan or forbearance of money but do not
authorize a unilateral increase of the interest rate by one party
without the other's consent (PNB
v. CA, 238 SCRA 2O [1994]]). To say otherwise will violate the
principle of mutuality of contracts under Article 1308 of the
Civil Code. To be valid, therefore, any change of interest must
be mutually agreed upon by the parties (Dizon v, Magsaysay, 57
SCRA 25O [1974]). In the present problem, the debtor not
having given his consent to the increase in interest, the increase
is void.
Mutuum; Interests (2002)
Carlos sues Dino for (a) collection on a promissory note for a
loan, with no agreement on interest, on which Dino defaulted,
and (b) damages caused by Dino on his (Carlos) priceless
Michaelangelo painting on which Dino is liable on the
promissory note and awards damages to Carlos for the
damaged painting, with interests for both awards. What rates
of interest may the court impose with respect to both awards?
Explain. (5%)
SUGGESTED ANSWER:
With respect to the collection of money or promissory note, it
being a forbearance of money, the legal rate of interest for
having defaulted on the payment of 12% will apply. With
respect to the damages to the painting, it is 6% from the time
of the final demand up to the time of finality of judgment until
judgment credit is fully paid. The court considers the latter as a
forbearance of money. (Eastern Shipping Lines,
Inc. v. CA, 234 SCRA 78 [1994]; Art 2210 and 2211,
CC)
Mutuum; Interests (2004)
The parties in a contract of loan of money agreed that the yearly
interest rate is 12% and it can be increased if there is a law that
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
would authorize the increase of interest rates. Suppose OB, the
lender, would increase by 5% the rate of interest to be paid by
TY, the borrower, without a law authorizing such increase,
would OBs action be just and valid? Why? Has TY a remedy
against the imposition of the rate increase? Explain. (5%)
SUGGESTED ANSWER:
OB's action is not just and valid. The debtor cannot be required
to pay the increase in interest there being no law authorizing it,
as stipulated in the contract. Increasing the rate in the absence
of such law violates the principle of mutuality of contracts.
ALTERNATIVE ANSWER:
Even if there was a law authorizing the increase in interest
rate, the stipulation is still void because there is no
corresponding stipulation to decrease the interest due when
the law reduces the rate of interest.
DEPOSIT
Compensation; Bank Loan (1997)
In order to secure a bank loan, XYZ Corporation surrendered
its deposit certificate, with a maturity date of 01 September
1997 to the bank. The corporation defaulted on the due
repayment of the loan, prompting the bank to encash the
deposit certificate. XYZ Corporation questioned the above
action taken by the bank as being a case of pactum
commissorium. The bank disagrees. What is your opinion?
SUGGESTED ANSWER:
We submit that there is no pactum commissorium here.
Deposits of money in banks and similar institutions are
governed by the provisions on simple loans (Art. 1980. Civil
Code). The relationship between the depositor and a bank is
one of creditor and debtor. Basically this is a matter of
compensation as all the elements of compensation are present
in this case (BPI vs. CA, 232 SCRA 302). ADDITIONAL
ANSWER:
Where the security for the debt is also money deposited in a
bank, it is not illegal for the creditor to encash the time
deposit certificates to pay the debtor's overdue obligation.
(Chu us. CA, et al., G.R 78519, September 26, 1989).
Deposit; Exchange (1992)
X and Y staged a daring bank robbery in Manila at 10:30 AM
in the morning of a regular business day, and escaped with
their loot of two (2) bags, each bag containing P50,000,00.
During their flight to elude the police, X and Y entered the
nearby locked house of A, then working in his Quezon City
office. From A's house, X and Y stole a box containing cash
totaling P50,000.00 which box A had been keeping in deposit
for his friend B.
In their hurry, X and Y left in A's bedroom one (1) of the bags
which they had taken from the bank.
With X and Y now at large and nowhere to be found, the bag
containing P50.000.00 is now claimed by B, by the Mayor of
Manila, and by the bank.
B claims that the depository. A, by force majeure had obtained
the bag of money in place of the box of money deposited by
B.
The Mayor of Manila, on the other hand, claims that the bag
of money should be deposited with the Office of the Mayor
as required of the finder by the provisions of the Civil Code.
The bank resists the claims of B and the Mayor of Manila.
To whom should a deliver the bag of money? Decide with
reasons.
SUGGESTED ANSWER:
B would have no right to claim the money. Article 1990 of the
Civil Code is not applicable. The law refers to another thing
received in substitution of the object deposited and is
predicated upon something exchanged.
The Mayor of Manila cannot invoke. Article 719 of the Civil
Code which requires the finder to deposit the thing with the
Mayor only when the previous possessor is unknown.
In this case , a must return the bag of money to the bank as
the previous possessor and known owner (Arts. 719 and 1990.
Civil Code.)
SURETY
Recovery of Deficiency (1997)
AB sold to CD a motor vehicle for and in consideration of
P120,000.00 to be paid in twelve monthly equal installments
of P10,000,00, each installment being due and payable on the
15th day of each month starting January 1997.
To secure the promissory note, CD (a) executed a chattel
mortgage on the subject motor vehicle, and (b) furnished a
surety bond issued by Philam life, CD failed to pay more than
two (2) installments, AB went after the surety but he was only
able to obtain three-fourths (3/4) of the total amount still due
and owing from CD. AB seeks your advice on how he might,
if at all, recover the deficiency. How would you counsel AB?
SUGGESTED ANSWER:
Yes, he can recover the deficiency. The action of AB to go
after the surety bond cannot be taken to mean a waiver of his
right to demand payment for the whole debt, The amount
received from the surety is only payment pro tanto, and an
action may be maintained for a deficiency debt.
ANTICHRESIS
Antichresis (1995)
Olivia owns a vast mango plantation which she can no longer
properly manage due to a lingering illness. Since she is
indebted to Peter in the amount of P500.000.00 she asks Peter
to manage the plantation and apply the harvest to the
payment of her obligation to him, principal and interest, until
her indebtedness shall have been fully paid. Peter agrees. 1)
What kind of contract is entered into between Olivia
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
and Peter? Explain. 2) What specific obligations are imposed
by law on Peter as a consequence of their contract? 3) Does
the law require any specific form for the validity of their
contract? Explain 4) May Olivia re-acquire the plantation
before her entire indebtedness shall have been fully paid?
Explain.
SUGGESTED ANSWER:
1. A contract of antichresis was entered into between
Olivia and Peter. Under Article 2132 of the New Civil Code,
by a contract of antichresis the creditor acquires the right to
receive the fruits of an immovable of his debtor, with the
obligation to apply them to the payment of the interest, and
thereafter to the principal of his credit.
SUGGESTED ANSWER:
2. Peter must pay taxes and charges upon the land and
bear the necessary expenses for preservation and repair which
he may deduct from the fruits. (Art, 2135, NCC)
SUGGESTED ANSWER:
3. The amount of the principal and interest must be
specified in writing, otherwise the antichresis will be void.
(Art. 2134, NCC)
SUGGESTED ANSWER:
4. No. Art. 2136 specifically provides that the debtor
cannot re-acquire the enjoyment of the immovable without
first having totally paid what he owes the creditor. However,
it is potestative on the part of the creditor to do so in order
to exempt him from his obligation under Art. 2135, NCC,
The debtor cannot re-acquire the enjoyment unless Peter
compels Olivia to enter again the enjoyment of the property.
PLEDGE
Pledge (1994)
In 1982, Steve borrowed P400.000.00 from Danny,
collateralized by a pledge of shares of stock of Concepcion
Corporation worth P800,000,00. In 1983, because of the
economic crisis, the value of the shares pledged fell to only
P100,000.00. Can Danny demand that Steve surrender the
other shares worth P700,000.00? SUGGESTED ANSWER:
a) No. Bilateral contracts cannot be changed
unilaterally. A pledge is only a subsidiary contract, and Steve
is still indebted to Danny for the amount of P400,000.00
despite the fall in the value of the stocks pledged.
b) No. Danny's right as pledgee is to sell the pledged
shares at a public sale and keep the proceeds as collateral for
the loan. There is no showing that the fall in the value of the
pledged property was attributable to the pledger's fault or
fraud. On the contrary, the economic crisis was the culprit.
Had the pledgee been deceived as to the substance or quality
of the pledged shares of stock, he would have had the right
to claim another thing in their place or to the immediate
payment of the obligation. This is not the case here.
Pledge (2004)
ABC loaned to MNO P40,000 for which the latter pledged 400
shares of stock in XYZ Inc. It was agreed that if the pledgor
failed to pay the loan with 10% yearly interest within four years,
the pledgee is authorized to foreclose on the shares of stock.
As required, MNO delivered possession of the shares to ABC
payment of the loan. However, the loan was not paid on
with the understanding that the shares would be returned to
MNO upon the
time. A month after 4 years, may the shares of stock pledged
be deemed owned by ABC or not? Reason. (5%)
SUGGESTED ANSWER:
The shares of stock cannot be deemed owned by ABC upon
default of MNO. They have to be foreclosed. Under Article
2088 of the Civil Code, the creditor cannot appropriate the
things given by way of pledge. And even if the parties have
stipulated that ABC becomes the owner of the shares in case
MNO defaults on the loan, such stipulation is void for being a
pactum commissorium.
Pledge; Mortgage; Antichresis (1996)
In the province, a farmer couple borrowed money from the
local merchant. To guarantee payment, they left the Torrens
Title of their land with the merchant, for him to hold until
they pay the loan. Is there a - a) contract of pledge, b)
contract of mortgage, c) contract of antichresis, or d) none
of the above? Explain.
SUGGESTED ANSWER:
None of the above. There is no pledge because only movable
property may be pledged (Art. 2094. NCC). If at all, there was
a pledge of the paper or document constituting the Torrens
Title, as a movable by itself, but not of the land which the title
represents.
There is no mortgage because no deed or contract was
executed in the manner required by law for a mortgage (Arts.
2085 to 2092, NCC; 2124 to 2131, NCC).
There is no contract of antichresis because no right to the
fruits of the property was given to the creditor (Art. 2132
NCC).
A contract of simple loan was entered into with security
arrangement agreed upon by the parties which is not one of
those mentioned above.
ALTERNATIVE ANSWER:
There is a contract of mortgage constituted over the land.
There is no particular form required for the validity of a
mortgage of real property. It is not covered by the statute of
frauds in Art. 1403, NCC and even assuming that it is
covered, the delivery of the title to the creditor has taken it
out of the coverage thereof. A contract of mortgage of real
property is consensual and is binding on the parties despite
absence of writing. However, third parties are not bound
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
because of the absence of a written instrument evidencing the
mortgage and, therefore the absence of registration. But this
does not affect the validity of the mortgage between the
parties (Art. 2125, NCC), The creditor may compel the debtor
to execute the mortgage in a public document in order to
allow its registration (Art. 1357.NCC in relation to Art. 1358.
NCC).

QUASI-CONTRACT
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Quasi-Contracts; Negotiorium Gestio (1992)
In fear of reprisals from lawless elements besieging his
barangay, X abandoned his fishpond, fled to Manila and left
for Europe. Seeking that the fish in the fishpond were ready
for harvest, Y, who is in the business of managing fishponds
on a commission basis, took possession of the property,
harvested the fish and sold the entire harvest to Z.
Thereafter, Y borrowed money from W and used the money
to buy new supplies of fish fry and to prepare the fishpond
for the next crop. a) What is the Juridical relation between X
and Y during X's absence? b) Upon the return of X to the
barangay, what are the obligations of Y to X as regards the
contract with Z? c) Upon X's return, what are the obligations
of X as regards Y's contract with W? d) What legal effects will
result if X expressly ratifies Y's management and what would
be the obligations of X in favor of Y? Explain all your
answers.
SUGGESTED ANSWER:
(a) The juridical relation is that of the quasi-contract of
"negotiorum gestio". Y is the "gestor" or "officious manager"
and X is the "owner" (Art. 2144, Civil Code).
(b) Y must render an account of his operations and
deliver to X the price he received for the sale of the harvested
fish (Art, 2145, Civil Code).
(c) X must pay the loan obtained by Y from W because
X must answer for obligations contracted with third persons
in
the interest of the owner (Art. 2150, Civil Code),
(d) Express ratification by X provides the effects of an
express agency and X is liable to pay the commissions
habitually received by the gestor as manager (Art. 2149, Civil
Code).
Quasi-Contracts; Negotiorium Gestio (1993)
In September, 1972, upon declaration of martial rule
in the Philippines. A, together with his wife and
children. disappeared from his residence along A.
Mabini Street. Ermita, Manila. B, his immediate
neighbor, noticing that mysterious disappearance of
A and his family, closed the doors and windows of his
house to prevent it from being burglarized. Years
passed without B hearing from A and his family, B
continued taking care of A's house, even causing
minor repairs to be done at his house to preserve it.
In 1976, when business began to perk up in the area,
an enterprising man. C, approached B and proposed
that they build stores at the ground floor of the house
and convert its second floor into a pension house. B
agreed to Cs proposal and together they spent for the
construction of stores at the ground floor and the
conversion of the second floor into a pension house.
While construction was going on, fire occurred at a
nearby house. The houses at the entire block,
including A's were burned. After the EDSA revolution
in February 1986, A and his family returned from the
United States where they took refuge in 1972. Upon
learning of what happened to his house. A sued B for
damages, B pleaded as a defense that he merely
took charge of his
house under the principle of negotiorum gestio. He
was not liable as the burning of the house is a
fortuitous event. Is B liable to A for damages under
the foregoing circumstances?
SUGGESTED ANSWER:
No. B is not liable for damages, because he is a gestor in
negotiorum gestio (Art. 2144, Civil Code) Furthermore, B is
not liable to A because Article 2147 of the Civil Code is not
applicable.
B did not undertake risky operations which the owner was
not accustomed to embark upon: a) he has not preferred his
own interest to that of the owner; b) he has not failed to
return the property or business after demand by the owner;
and c) he has not assumed the management in bad faith.
ALTERNATIVE ANSWER:
He would be liable under Art. 2147 (1) of the Civil Code,
because he used the property for an operation which the
operator is not accustomed to, and in so doing, he exposed
the house to increased risk, namely the operation of a
pension house on the second floor and stores on the first
floor
Quasi-Contracts; Negotiorium Gestio (1995)
Armando owns a row of residential apartments in San Juan,
Metro Manila, which he rents out to tenants. On 1 April 1991
he left for the United States without appointing any
administrator to manage his apartments such that uncollected
rentals accumulated for three (3) years. Amparo, a niece of
Armando, concerned with the interest of her uncle, took it
upon herself to administer the property. As a consequence,
she incurred expenses in collecting the rents and in some
instances even spent for necessary repairs to preserve the
property.
CIVIL LAW Answers to the BAR as Arranged by Topics
1. What Juridical relation between Amparo and
Armando, if any, has resulted from Amparo's unilateral act of
assuming the administration of Armando's apartments?
Explain.
2. What rights and obligations, if any, does Amparo
have under the circumstances? Explain.
SUGGESTED ANSWER:
1. Negotiorum gestio existed between Amparo and
Armando, She voluntarily took charge of the agency or
management of the business or property of her uncle without
any power from her uncle whose property was neglected. She
is called the gestor negotiorum or officious manager, (Art.
(Year 1990
The courts may, however, increase or moderate the indemnity
according to the circumstances of each case.
Art. 2146. If the officious manager delegates to another person
all or some of his duties, he shall be liable for the acts of the
delegate, without prejudice to the direct obligation of the latter
toward the owner of the business.
The responsibility of two or more officious managers shall be
solidary, unless management was assumed to save the thing or
business from imminent danger.
Art. 2147. The officious manager shall be liable for any
fortuitous event:
(1) If he undertakes risky operations which the owner
was not accustomed to embark upon;
(2) If he has preferred his own interest to that of the
owner;
(3) If he fails to return the property or business after
demand by the owner,
(4) If he assumed the management in bad faith.
Art. 2148. Except when the management was assumed to
save the property or business from imminent danger, the
officious manager shall be liable for fortuitous events
(1) If he is manifestly unfit to carry on the management;
(2) If by his Intervention h e prevented a more
competent person from taking up the management.
Art. 2149. The ratification of the management by the owner
of the business produces the effects of an express agency,
even if the business may not have been successful.
Art. 2150, Although the officious management may not have
been expressly ratified, the owner of the property or business
who enjoys the advantages of the same shall be liable for
obligations incurred in his interest, and shall reimburse the
officious manager for the necessary and useful expenses and
for the damages which the latter may have suffered in the
performance of his duties.
-2006)
2144, NCC)
2. It is recommended by the Committee that an
enumeration of any two (2) obligations and two (2) rights as
enumerated in Arts. 2145 to 2152, NCC, would entitle the
examinee to full credit.
Art. 2145. The officious manager shall perform his duties
with all the diligence of a good father of a family, and pay the
damages which through his fault or negligence may be
suffered by the owner of the property or business under
management.
The same obligation shall be incumbent upon him when the
management had for its purpose the prevention of an
imminent and manifest loss, although no benefit may have
been derived.
Art. 2151. Even though the owner did not derive any benefit
and there has been no imminent and manifest danger to the
property or business, the owner is liable as under the first
paragraph of the preceding article, provided: (1) The officious
manager has acted in good faith, and (2) The property or
business is intact, ready to be returned to the owner.
Art. 2152. The officious manager is personally liable for
contracts which he has entered into with third persons, even
though he acted in the name of the owner, and there shall be
no right of action between the owner and third persons.
These provisions shall not apply:
(1) If the owner has expressly or tacitly ratified the
management, or
(2) When the contract refers to things pertaining to the
owner of the business,
(NOTE: It is recommended by the Committee that an enumeration of any
two (2) obligations and any two (2) rights as enumerated la Arts. 2145 to
2152, NCC would entitle the examinee to full credit.)
Quasi-Contracts; Solutio Indebiti (2004)
DPO went to a store to buy a pack of cigarettes worth
P225.00 only. He gave the vendor, RRA, a P500-peso bill.
The vendor gave him the pack plus P375.00 change. Was
there a discount, an oversight, or an error in the amount
given? What would be DPOs duty, if any, in case of an
excess in the amount of change given by the vendor? How is
this situational relationship between DPO and RRA
denominated? Explain. (5%) SUGGESTED
ANSWER:
There was error in the amount of change given by RRA. This
is a case of solutio indebiti in that DPO received something that
is not due him. He has the obligation to return the P100.00;
otherwise, he will unjustly enrich himself at the expense of
RRA. (Art. 2154, Civil Code) ALTERNATIVE
ANSWER:
DPO has the duty to return to RRA the excess P100 as
trustee under Article 1456 of the Civil Code which provides:
If property is acquired through mistake or fraud, the person
obtaining it is, by force of law, considered a trustee of an
implied trust for the benefit of the person from whom the
property comes. There is, in this case, an implied or
constructive trust in favor of RRA.

TORTS & DAMAGES

Collapse of Structures; Last Clear Chance (1990)
Mr and Mrs R own a burned-out building, the firewall of
which collapsed and destroyed the shop occupied by the
family of Mr and Mrs S, which resulted in injuries to said
couple and the death of their daughter. Mr and Mrs S had
been warned by Mr & Mrs R to vacate the shop in view of its
proximity to the weakened wall but the former failed to do
so. Mr & Mrs S filed against Mr and Mrs R an action for
recovery of damages the former suffered as a result of the
collapse of the firewall. In defense, Mr and Mrs R rely on the
doctrine of last clear chance alleging that Mr and Mrs S had
the last clear chance to avoid the accident if only they heeded
the formers warning to vacate the shop, and therefore Mr
and Mrs Rs prior negligence should be disregarded. If you
were the judge, how would you decide the case? State your
reasons.

SUGGESTED ANSWER:
I would decide in favor of Mr & Mrs S. The proprietor of a
building or structure is responsible for the damages resulting
from its total or partial collapse, if it should be due to the
lack of necessary repairs (Art 2190 Civil Code)

As regards the defense of last clear chance, the same is

not tenable because according to the SC in one case (De Roy
v CA L-80718, Jan 29, 1988, 157 S 757) the doctrine of last clear
chance is not applicable to instances covered by Art 2190 of
the Civil Code.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Further, in Phoenix Construction, Inc. v. Intermediate Availing of that portion of Section 12 of Article II of the
Appellate Court (G.R. L-65295, March 10, 1987. 148 SCRA 353) fee, removed and expelled the fetus from her womb, Boy
the Supreme Court held that the role of the common law "last
clear chance" doctrine in relation to Article 2179 of the Civil
Code is merely to mitigate damages within the context of
contributory negligence.
Damages (1994)
On January 5, 1992, Nonoy obtained a loan of Pl,000,000.00
from his friend Raffy. The promissory note did not stipulate
any payment for Interest. The note was due on January 5,
1993 but before this date the two became political enemies.
Nonoy, out of spite, deliberately defaulted in paying the note,
thus forcing Raffy to sue him. 1) What actual damages can
Raffy recover? 2) Can Raffy ask for moral damages from
Nonoy? 3) Can Raffy ask for nominal damages? 4) Can Raffy
ask for temperate damages? 5) Can Raffy ask for attorney's
fees?
SUGGESTED ANSWER:
1) Raffy may recover the amount of the promissory
note of P1 million, together with interest at the legal rate from
the date of judicial or extrajudicial demand. In addition,
however, inasmuch as the debtor is in bad faith, he is liable for
all damages which may be reasonably attributed to the non-
performance of the obligation. (Art. 2201(2). NCC).
2) Yes, under Article 2220, NCC moral damages are
recoverable in case of breach of contract where the defendant
acted fraudulently or in bad faith.
3) Nominal damages may not be recoverable in this
case because Raffy may already be indemnified of his losses
with the award of actual and compensatory damages.
NOMINAL DAMAGES are adjudicated only in order that a
right of the plaintiff, which has been violated or invaded by
the defendant may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss suffered
by him. (Article 2231. Civil Code)
4) Raffy may ask for, but would most likely not be
awarded temperate damages, for the reason that his actual
damages may already be compensated upon proof thereof
with the
promissory note. TEMPERATE DAMAGES may be
awarded only when the court finds that some pecuniary loss
has been suffered but its amount cannot, from the nature of
the case, be proved with certainty. (Article 2224, Civil Code)
5) Yes, under paragraph 2, Article 2208 of the Civil
Code, considering that Nonoy's act or omission has compelled
Raffy to litigate to protect his interests. Furthermore.
attorneys' fees may be awarded by the court when it is just and
equitable. (Article 2208(110) Civil Code).
Damages arising from Death of Unborn Child (1991)
On her third month of pregnancy, Rosemarie, married to
Boy, for reasons known only to her, and without informing
Boy, went to the clinic of X, a known abortionist, who for a
learned of the abortion six (6) months later.
1987 Constitution which reads;
The State x xx shall equally protect the life of the mother
and the life of the unborn from conception, "xxx" which
he claims confers a civil personality on the unborn from
the moment of conception.
Boy filed a case for damages against the abortionist, praying
therein that the latter be ordered to pay him: (a) P30,000.00 as
indemnity for the death of the fetus, (b) P100.000.00 as moral
damages for the mental anguish and anxiety he suffered, (c)
P50,000.00 as exemplary damages, (d) P20,000.00 as nominal
damages, and (e) P25,000.00 as attorney's fees. May actual
damages be also recovered? If so, what facts should be alleged
and proved?
SUGGESTED ANSWER:
Yes, provided that the pecuniary loss suffered should be
substantiated and duly proved.
Damages arising from Death of Unborn Child (2003)
If a pregnant woman passenger of a bus were to suffer an
abortion following a vehicular accident due to the gross
negligence of the bus driver, may she and her husband claim
damages from the bus company for the death of their
unborn child? Explain. 5% SUGGESTED
ANSWER:
No, the spouses cannot recover actual damages in the form of
indemnity for the loss of life of the unborn child. This is
because the unborn child is not yet considered a person and
the law allows indemnity only for loss of life of person. The
mother, however may recover damages for the bodily injury
she suffered from the loss of the fetus which is considered
part of her internal organ. The parents may also recover
damages for injuries that are inflicted directly upon them, e.g.,
moral damages for mental anguish that attended the loss of
the unborn child. Since there is gross negligence, exemplary
damages can also be recovered. (Gelus v. CA, 2 SCRA 801
[1961])
Death Indemnity (1994)
Johnny Maton's conviction for homicide was affirmed by the
Court of Appeals and in addition, although the prosecution
had not appealed at all. The appellate court increased the
indemnity for death from P30,000.00 to P50,000.00. On his
appeal to the Supreme Court, among the other things Johnny
Maton brought to the high court's attention, was the increase
of indemnity imposed by the Court of Appeals despite the
clear fact that the People had not appealed from the appellate
court's judgment. Is Johnny Maton correct?
SUGGESTED ANSWER:
a) In Abejam v. Court of Appeals, the Supreme Court said
that even if the issue of damages were not raised by the
appellant in the Court of Appeals but the Court of
Appeals in its findings increased the damages, the
Supreme Court will not disturb the findings of the Court
of Appeals.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
b) No, the contention of the accused is not correct because
upon appeal to the Appellate Court, the court acquired
jurisdiction over the entire case, criminal as well as civil.
Since the conviction of homicide had been appealed,
there
is no finality in the amount of indemnity because the civil
liability arising from the crime and the judgment on the crime
has not yet become final
c) Yes. Since the civil indemnity is an award in the civil
action arising from the criminal offense, the rule that a
party cannot be granted affirmative relief unless he
himself has appealed should apply. Therefore, it was
error for the Court of Appeals to have expanded the
indemnity since the judgment on the civil liability had
become final.
d) No. Courts can review matters not assigned as errors.
(Hydro Resource vs. CA . 204 SCRA 309).
Defense; Due Diligence in Selection (2003)
As a result of a collision between the taxicab owned by A and
another taxicab owned by B, X, a passenger of the first taxicab,
was seriously injured. X later filed a criminal action against both
drivers.
May both taxicab owners raise the defense of due diligence in
the selection and supervision of their drivers to be absolved
from liability for damages to X? Reason. 5% SUGGESTED
ANSWER:
It depends. If the civil action is based on a quasi-delict the
taxicab owners may raise the defense of diligence of a good
father of a family in the selection and supervision of the driver;
if the action against them is based on culpa contractual or civil
liability arising from a crime, they cannot raise the defense.
Filing of Separate Civil Action; Need for
Reservation (2003)
As a result of a collision between the taxicab owned by A and
another taxicab owned by B, X, a passenger of the first taxicab,
was seriously injured. X later filed a criminal action against both
drivers.
Is it necessary for X to reserve his right to institute a civil action
for damages against both taxicab owners before he can file a
civil action for damages against them? Why
SUGGESTED ANSWER:
It depends. If the separate civil action is to recover damages
arising from the criminal act, reservation is necessary. If the civil
action against the taxicab owners is based on culpa contractual,
or on quasi-delict, there is no need for reservation.
ALTERNATIVE ANSWER:
No, such reservation is not necessary. Under Section 1 of
Rule 111 of the 2000 Rules on Criminal Procedure, what is
deemed instituted with the criminal action is only the action
to recover civil liability arising from the crime or ex delicto. All
the other civil actions under Articles 32, 33, 34 and 2176 of the
New Civil Code are no longer deemed instituted , and may
be filed separately and prosecuted independently even without
any reservation in the criminal action (Section 3, Rule 111,
Ibid). The failure to make a reservation in the criminal action is
not a waiver of the right to file a separate and independent civil
action based on these articles of the New Civil Code
(Casupanan v. Laroya GR No. 145391, August 26, 2002).
A van owned by Orlando and driven by Diego, while
Fortuitous Event; Mechanical Defects (2002)
negotiating a downhill slope of a city road, suddenly gained
speed, obviously beyond the authorized limit in the area, and
bumped a car in front of it, causing severed damage to the
care and serious injuries to its passengers. Orlando was not in
the car at the time of the incident. The car owner and the
injured passengers sued Orlando and Diego for damages
caused by Diegos negligence. In their defense, Diego claims
that the downhill slope caused the van to gain speed and that,
as he stepped on the brakes to check the acceleration, the
brakes locked, causing the van to go even faster and eventually
to hit the car in front of it. Orlando and Diego contend that
the sudden malfunction of the vans brake system is a
fortuitous even and that, therefore, they are exempt from any
liability. Is this contention tenable? Explain.
(2%)
SUGGESTED ANSWER:
No. Mechanical defects of a motor vehicle do not constitute
fortuitous event, since the presence of such defects would
have been readily detected by diligent maintenance check. The
failure to maintain the vehicle in safe running condition
constitutes negligence.
Liability; Airline Company; Non-Performance of an
Obligation
(2004)
DT and MT were prominent members of the frequent
travelers club of FX Airlines. In Hongkong, the couple were
assigned seats in Business Class for which they had bought
tickets. On checking in, however, they were told they were
upgraded by computer to First Class for the flight to Manila
because the Business Section was overbooked.
Both refused to transfer despite better seats, food, beverage and
other services in First Class. They said they had guests in
Business Class they should attend to. They felt humiliated,
embarrassed and vexed, however, when the stewardess
allegedly threatened to offload them if they did not avail of the
upgrade. Thus they gave in, but during the transfer of luggage
DT suffered pain in his arm and wrist. After arrival in Manila,
they demanded an apology from FXs management as well as
indemnity payment. When none was forthcoming, they sued
the airline for a million pesos in damages. Is the airline liable
for actual and moral damages? Why or why not? Explain
briefly. (5%)
SUGGESTED ANSWER:
FX Airlines committed breach of contract when it upgraded
DT and MT, over their objections, to First Class because they
had contracted for Business Class passage. However, although
there is a breach of contract, DT and MT are entitled to actual
damages only for such pecuniary losses suffered by them as a
result of such breach. There seems to be no showing that they
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
incurred such pecuniary loss. There is no showing that the
pain in DT's arm and wrist resulted directly from the carrier's
acts complained of. Hence, they are not entitled to actual
damages. Moreover, DT could have avoided the alleged injury
by requesting the airline staff to do the luggage transfer as a
matter of duty on their part. There is also no basis to award
moral damages for such breach of contract because the facts
of the problem do not show bad faith or fraud on the part of
the airline. (Cathay Pacific v. Vazquez, 399 SCRA 207 [2003]).
However, they
may recover moral damages if the cause of action is based
on Article 21 of the Civil Code for the humiliation and
embarrassment they felt when the stewardess threatened to
offload them if they did not avail of the upgrade.
ALTERNATIVE ANSWER:
If it can be proved that DT's pain in his arm and wrist
occasioned by the transfer of luggage was caused by fault or
negligence on the part of the airline's stewardess, actual
damages may be recovered.
The airline may be liable for moral damages pursuant to Art.
2219 (10) if the cause of action is based on Article 21 or an act
contrary to morals in view of the humiliation suffered by DT
and MT when they were separated from their guests and were
threatened to be offloaded.
Liability; Airline Company; Non-Performance of an
Obligation
(2005)
Dr. and Mrs. Almeda are prominent citizens of the country
and are frequent travelers abroad. In 1996, they booked
round-trip business class tickets for the Manila-Hong Kong-
Manila route of the Pinoy Airlines, where they are holders of
Gold Mabalos Class Frequent Flier cards. On their return
flight, Pinoy Airlines upgraded their tickets to first class
without their consent and, inspite of their protestations to be
allowed to remain in the business class so that they could be
with their friends, they were told that the business class was
already fully booked, and that they were given priority in
upgrading because they are elite members/holders of Gold
Mabalos Class cards. Since they were embarrassed at the
discussions with the flight attendants, they were forced to take
the flight at the first class section apart from their friends who
were in the business class. Upon their return to Manila, they
demanded a written apology from Pinoy Airlines. When it
went unheeded, the couple sued Pinoy Airlines for breach of
contract claiming moral and exemplary damages, as well as
attorney's fees. Will the action prosper? Give reasons. (5%)
ALTERNATIVE ANSWER:
Yes, the action will prosper. Article 2201 of the Civil Code
entitles the person to recover damages which may be
attributed to non-performance of an obligation. In Alitalia
Airways v. Court of Appeals (G.R. No. 77011, July 24, 1990) ,
when an airline issues ticket to a passenger confirmed on a
particular flight, a contract of carriage arises and the passenger
expects that he would fly on that day. When the airline
deliberately overbooked, it took the risk of having to deprive
some passengers of their seat in case all of them would show
up. For the indignity and inconvenience of being refused the
confirmed seat, said passenger is entitled to moral damages.
In the given problem, spouses Almeda had a booked
roundtrip business class ticket with Pinoy Airlines. When their
tickets were upgraded to first class without their consent,
Pinoy Airlines breached the contract. As ruled in
Zulueta v. Pan American (G.R. No. L-28589, January 8, 1973),
in case of overbooking, airline is in bad faith. Therefore,
The action may or may not prosper. Moral damages include
spouses Almeda are entitled to damages.
ALTERNATIVE ANSWER:
physical suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Although incapable of pecuniary
computation, moral damages may be recovered if they are the
proximate result of the defendant's wrongful act or omission.
Moral damages predicated upon a breach of contract of carriage
are recoverable only in instances where the carrier is guilty of
fraud or bad faith or where the mishap resulted in the death of
a passenger. (Cathay Pacific Airways, Ltd. v. Court of Appeals,
G.R. No. 60501, March 5, 1993) Where there is no showing that
the airline acted fraudulently or in bad faith, liability for
damages is limited to the natural and probable consequences of
the breach of the contract of carriage which the parties had
foreseen or could have reasonably foreseen. In such a case the
liability does not include moral and exemplary damages.
In the instant case, if the involuntary upgrading of the Almedas'
seat accommodation was not attended by fraud or bad faith, the
award of moral damages has no leg to stand on.
Thus, spouses would not also be entitled to exemplary
damages. It is a requisite in the grant of exemplary damages that
the act of the offender must be accompanied by bad faith or
done in wanton, fraudulent or malevolent manner.
(Morris v. Court of Appeals, G.R. No. 127957, February 21, 2001)
Moreover, to be entitled thereto, the claimant must first
establish his right to moral, temperate, or compensatory
damages. (Art. 2234, Civil Code) Since the Almedas are not
entitled to any of these damages, the award for exemplary
damages has no legal basis. Where the awards for moral and
exemplary damages are eliminated, so must the award for
attorney's fees be eliminated. (Orosa v. Court of Appeals, G.R.
No. 111080, April 5, 2000; Morris v. Court of Appeals, G.R. No.
127957, February 21, 2001) The most that can be adjudged in their
favor for Pinoy Airlines' breach of contract is an award for
nominal damages under Article 2221 of the Civil Code.
(Cathay Pacific Airways v. Sps. Daniel & Maria Luisa Vasquez,
G.R. No. 150843, March 14, 2003)
However, if spouses Almeda could prove that there was bad
faith on the part of Pinoy Airlines when it breached the
contract of carriage, it could be liable for moral, exemplary as
well as attorney's fees.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Liability; Employer; Damage caused by Employees
(1997)
a) When would an employer's liability for damage, caused by
an employee in the performance of his assigned tasks,
be primary and when would it be subsidiary in
nature? b) Would the defense of due diligence in the
selection and supervision of the employee be
available to the
employer in both instances? SUGGESTED
ANSWER::
(a) The employer's liability for damage based on culpa aquiliana
under Art, 2176 and 2180 of the Civil Code is primary; while
that under Art. 103 of the Revised Penal Code is subsidiary.
(b) The defense of diligence in the selection and
supervision of the employee under Article 2180 of the Civil
Code is available only to those primarily liable thereunder,
but not to those subsidiarily liable under Article 103 of the
Revised Penal Code (Yumul vs. Juliano, 72 Phil. 94).
Liability; owner who was in the vehicle (1996)
Marcial, who does not know how to drive, has always been
driven by Ben, his driver of ten years whom he had chosen
carefully and has never figured in a vehicular mishap. One day,
Marcial was riding at the back seat of his Mercedes Benz being
driven along EDSA by Ben. Absorbed in reading a book,
Marcial did not notice that they were approaching the corner
of Quezon Avenue, when the traffic light had just turned
yellow. Ben suddenly stepped on the gas to cross the
intersection before the traffic light could turn red. But, too
late. Midway in the intersection, the traffic light changed, and
a Jeepney full of passengers suddenly crossed the car's path. A
collision between the two vehicles was inevitable. As a result,
several jeepney passengers were seriously injured. A suit for
damages based on culpa aquiliana was filed against Marcial
and Ben, seeking to hold them jointly and severally liable for
such injuries. May Marcial be held liable? Explain.
SUGGESTED ANSWER:
Marcial may not be liable because under Art. 2184, NCC, the
owner who is in the vehicle is not liable with the driver if by
the exercise of due diligence he could have prevented the
injury. The law does not require the owner to supervise the
driver every minute that he was driving. Only when through
his negligence, the owner has lost an opportunity to prevent
the accident would he be liable (Caedo v. Ytt Khe Thai, 26
SCRA 410 citing Chapman v. Underwood and Manlangit v.
Mauler, 250 SCRA 560). In this case, the fact that the owner
was absorbed in reading a book does not conclusively show
that he lost the opportunity to prevent the accident through
his negligence.
ALTERNATIVE ANSWER:
Yes, Marcial should be held liable. Art. 2164. NCC makes an
owner of a motor vehicle solidarily liable with the driver if,
being in the vehicle at the time of the mishap, he could have
prevented it by the exercise of due diligence. The traffic
conditions along EDSA at any time of day or night are such as
to require the observance of utmost care and total alertness in
view of the large number of vehicles running at great speed.
Marcial was negligent in that he rendered himself oblivious to
the traffic hazards by reading a book instead of focusing his
attention on the road and supervising the manner in which his
car was being driven. Thus he failed to prevent his driver from
attempting to beat the traffic light at the junction of Quezon
Avenue and EDSA, which Marcial, without being a driver
himself could have easily perceived as a reckless course of
conduct.
Liability; owner who was in the vehicle (1998) A
Gallant driven by John and owned by Art, and a
Corolla driven by its owner, Gina, collided somewhere
along Adriatico Street. As a result of the accident,
Gina had a concussion. Subsequently. Gina brought
the vehicle at the time of the accident, be held solidarily
an action for damages against John and Art. There is
no doubt that the collision is due to John's negligence.
Can Art, who was in
liable with his driver, John? (5%)
SUGGESTED ANSWER:
Yes. Art may be held solidary liable with John, if it was proven
that the former could have prevented the misfortune with the
use of due diligence. Article 2184 of the Civil Code states: "In
motor mishaps, the owner is solidary liable with his driver, if
the former, who was in the vehicle, could have, by the use of
due diligence, prevented the misfortune, x x x"
ALTERNATIVE ANSWER:
1. It depends. The Supreme Court in Chapman vs, Underwood
(27 Phil 374), held: "An owner who sits in his automobile, or
other vehicle, and permits his driver to continue in a violation
of law by the performance of negligent acts, after he has had a
reasonable opportunity to observe them and to direct that the
driver cease therefrom, becomes himself responsible for such
acts, x x x On the other hand, if the driver, by a sudden act of
negligence, and without the owner having a reasonable
opportunity to prevent the act or its continuance, injures a
person or violates the criminal law, the owner of the
automobile, although present therein at the time the act was
committed is not responsible, either civilly or criminally,
therefor. The act complained of must be continued in the
presence of the owner for such a length of time that the owner,
by his acquiescence, makes his driver's act his own."
Liability; owner who was in the vehicle (2002)
Does the presence of the owner inside the vehicle causing
damage to a third party affect his liability for his drivers
negligence? Explain (2%) SUGGESTED
ANSWER:
In motor vehicle mishaps, the owner is made solidarily liable
with his driver if he (the owner) was in the vehicle and could
have, by the use of due diligence, prevented the mishap.
(Caedo v. Yu Khe Thai, 26 SCRA 410 [1968]).
Moral Damages & Atty Fees (2002)
Ortillo contracts Fabricato, Inc. to supply and install tile
materials in a building he is donating to his province. Ortillo
pays 50% of the contract price as per agreement. It is also
agreed that the balance would be payable periodically after
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
every 10% performance until completed. After performing
about 93% of the contract, for which it has been paid an
additional 40% as per agreement, Fabricato, Inc. did not
complete the project due to its sudden cessation of operations.
Instead, Fabricato, Inc. demands payment of the last 10% of
the contract despite its non-completion of the project. Ortillo
refuses to pay, invoking the stipulation that payment of the last
amount 10% shall be upon completion. Fabricato, Inc. brings
suit for the entire 10%. Plus damages, Ortillo counters with
claims for (a) moral damages for Fabricato, Inc.s unfounded
suit which has damaged his reputation as a philanthropist and
respect businessman in his community, and (b) attorneys fees.
A. Does Ortillo have a legal basis for his claim for moral
damages? (2%)
B. How about his claim for attorneys fees, having hired
a lawyer to defend him? (3%) SUGGESTED ANSWER:
 CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
A. There is no legal basis to Ortillos claim for moral
damages. It does not fall under the coverage of Article 2219
of the New Civil Code.
B. Ortillo is entitled to attorneys fees because
Fabricatos complaint is a case of malicious prosecution or a
clearly unfounded civil action. (Art. 2208 [4] and [11], NCC).
Moral Damages; Non-Recovery Thereof (2006)
Under Article 2219 of the Civil Code, moral damages may be
recovered in the cases specified therein several of which are
enumerated below. Choose the case wherein you cannot
recover moral damages. Explain. (2.5%) a) A criminal offense
resulting in physical injuries b) Quasi-delicts causing physical
injuries c) Immorality or dishonesty d) Illegal search e)
Malicious prosecution SUGGESTED ANSWER: Immorality and
dishonesty, per se, are not among those cases enumerated in
Article 2219 which can be the basis of an action for moral
damages. The law specifically mentions adultery or
concubinage, etc. but not any and every immoral act.
Quasi-Delict (1992)
As the result of a collision between a public service passenger
bus and a cargo truck owned by D, X sustained physical
injuries and Y died. Both X and Y were passengers of the bus.
Both drivers were at fault, and so X and Z, the only heir and
legitimate child of the deceased Y, sued the owners of both
vehicles. a) May the owner of the bus raise the defense of
having exercised the diligence of a good father of a family? b)
May D raise the same defense? c) May X claim moral
damages from both defendants? d) May Z claim moral
damages from both defendants? Give reasons for all your
answers,
SUGGESTED ANSWER:
(a)No. The owner of the bus cannot raise the defense
because the carrier's liability is based on breach of contract
(b) Yes. D can raise the defense because his liability is based
on a quasi-delict.
(c) Because X suffered physical injuries, X can claim moral
damages against D, but as against the owner of the bus. X
can claim moral damages only if X proves reckless
negligence of the carrier amounting to fraud.
(d) Z can claim moral damages against both defendants
because the rules on damages arising from death due to a
quasi-delict are also applicable to death of a passenger
caused by breach of contract by a common carrier (Arts.
1755. 1756, 1764, 2206 and 2219. Civil Code).
Quasi-Delict (2005)
Under the law on quasi-delict, aside from the persons who
caused injury to persons, who else are liable under the
following circumstances:
a) When a 7-year old boy injures his playmate while
playing with his father's rifle. Explain. (2%) SUGGESTED
ANSWER:
The parents of the 7-year old boy who caused injury to his
playmate are liable under Article 219 of the Family Code, in
relation to Article 2180 of the Civil Code since they exercise
parental authority over the person of the boy. (Tamargo v.
Court of Appeals, G.R. No. 85044, June 3, 1992; Elcano v. Hill,
G.R. No. L-24803, May 26, 1977)
b) When a domestic helper, while haggling for a
lower price with a fish vendor in the course of buying
foodstuffs for her employer's family, slaps the fish vendor,
causing her to fall and sustain injuries. Explain. (2%)
SUGGESTED ANSWER:
Employer of the domestic helper who slapped a fish vendor.
Under Article 2180, par. 5 of the Civil Code, "employers shall
be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned
tasks, even though the former are not engaged in any business
or industry."
c) A carpenter in a construction company
accidentally hits the right foot of his co-worker with a
hammer.
Explain. (2%) SUGGESTED
ANSWER:
The owner of the construction company. Article 2180,
paragraph 4 states that "the owners and managers of an
establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion
of their functions."
d) A 15-year old high school student stabs his
classmate who is his rival for a girl while they were going
out of the classroom after their last class. Explain. (2%)
SUGGESTED ANSWER:
The school, teacher and administrator as they exercise special
parental authority. (Art. 2180, par. 7 in relation to Art. 218
and Art. 219 of the Family Code)
e) What defense, if any, is available to them? (2%)
SUGGESTED ANSWER:
The defense that might be available to them is the observance
of a good father of the family to prevent the damage. (Last
par., Art. 2180, Civil Code)
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
Quasi-Delict; Acts contrary to morals (1996)
Rosa was leasing an apartment in the city. Because of the Rent
Control Law, her landlord could not increase the rental as
much as he wanted to, nor terminate her lease as long as she
was paying her rent. In order to force her to leave the
premises, the landlord stopped making repairs on the
apartment, and caused the water and electricity services to be
disconnected. The difficulty of living without electricity and
running water resulted in Rosa's suffering a nervous
breakdown. She sued the landlord for actual and moral
damages. Will the action prosper? Explain.
SUGGESTED ANSWER:
Yes, based on quasi-delict under the human relations
provisions of the New Civil Code (Articles 19, 20 and 21)
because the act committed by the lessor is contrary to morals.
Moral damages are recoverable under Article 2219 (10) in
relation to Article 21. Although the action is based on quasi-
delict and not on contract, actual damages may be recovered if
the lessee is able to prove the losses and expenses she suffered.
ALTERNATIVE ANSWERS:
a) Yes, based on breach of contract. The lessor has the
obligation to undertake repairs to make the apartment habitable
and to maintain the lessee in the peaceful and adequate
enjoyment of the lease for the entire duration of the contract
(Article 1654. NCC). Since there was willful breach of contract
by the lessor, the lessee is entitled to moral damages under
Article 3220, NCC. She is also entitled to actual damages, e. g.
loss of income, medical expenses, etc., which she can prove at
the trial.
b) Yes, based on contract and/or on tort. The lessor
willfully breached his obligations under Article 1654. NCC,
hence, he is liable for breach of contract. For such breach, the
lessee may recover moral damages under Art. 2220 of the NCC,
and actual damages that she may have suffered on account
thereof. And since the conduct of the lessor was contrary to
morals, he may also be held liable for quasi-delict. The lessee
may recover moral damages under Article 2219 (10) in relation
to Article 21, and all actual damages which she may have
suffered by reason of such conduct under Articles 9, 20 and 21.
c) Yes, the action should prosper for both actual and
moral damages. In fact, even exemplary damages and attorney's
fees can be claimed by Rosa, on the authority of Magbanua vs.
IAC (137 SCRA 328), considering that, as given, the lessor's
willful and illegal act of disconnecting the water and electric
services resulted in Rosa's suffering a nervous breakdown. Art.
20 NCC and Art, 21, NCC authorize the award of damages for
such willful and illegal conduct.
Quasi-Delict; Mismanagement of Depositors
Account (2006)
Tony bought a Ford Expedition from a car dealer in
Muntinlupa City. As payment, Tony issued a check drawn
against his current account with Premium Bank. Since he has a
good reputation, the car dealer allowed him to immediately
drive home the vehicle merely on his assurance that his check
is sufficiently funded. When the car dealer deposited the check,
it was dishonored on the ground of "Account Closed." After
an investigation, it was found that an employee of the bank
misplaced Tony's account ledger. Thus, the bank erroneously
assumed that his account no longer exists. Later it turned out
that Tony's account has more than sufficient funds to cover the
check. The dealer however, immediately filed an action for
recovery of possession of the vehicle against Tony for which
he was terribly humiliated and embarrassed. Does Tony have a
cause of action against Premium Bank? Explain.
(5%)
SUGGESTED ANSWER:
Yes, Tony may file an action against Premium Bank for damages
for quasi-delict may nonetheless prosper. The Supreme
under Art. 2176. Even if there exists a contractual relationship
between Tony and Premium Bank, an action
Court has consistently ruled that the act that breaks the
contract may also be a tort. There is a fiduciary relationship
between the bank and the depositor, imposing utmost
diligence in managing the accounts of the depositor. The
dishonor of the check adversely affected the credit standing of
Tony, hence, he is entitled to damages (Singson v. BPI,
G.R. No. L-24932, June 27, 1968; American Express
International, Inc. v. IAC, G.R. No. 72383, November 9, 1988;
Consolidated Bank and Trust v. CA, G.R. No. L-70766
November 9,1998).
Vicarious Liability (1991)
Romano was bumped by a minivan owned by the Solomon
School of Practical Arts (SSPA). The minivan was driven by
Peter, a student assistant whose assignment was to clean the
school passageways daily one hour before and one hour after
regular classes, in exchange for free tuition. Peter was able to
drive the school vehicle after persuading the regular driver,
Paul, to turn over the wheel to him (Peter). Romano suffered
serious physical injuries. The accident happened at night when
only one headlight of the vehicle was functioning and Peter
only had a student driver's permit. As a consequence, Peter
was convicted in the criminal case. Thereafter, Romano sued
for damages against Peter and SSPA. a) Will the action for
damages against Peter and SSPA prosper? b) Will your
answer be the same if, Paul, the regular
driver, was impleaded as party defendant for allowing
Peter to drive the minivan without a regular driver's
license. c) Is the exercise of due diligence in the selection and
supervision of Peter and Paul a material issue to be
resolved in this case?
SUGGESTED ANSWER:
A. Yes. It will prosper (Art, 2180) because at the time
he drove the vehicle, he was not performing his assigned tasks
as provided for by Art. 2180. With respect to SSPA, it is not
liable for the acts of Peter because the latter was not an
employee as held by Supreme Court in Filamer Christian
Institute vs. CA. (190 SCRA 485). Peter belongs to a special
category of students who render service to the school in
exchange for free tuition fees.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
B. I would maintain the same answer because the
incident did not occur while the employee was in the
performance of his duty as such employee. The incident
occurred at night time, and in any case, there was no
indication in the problem that he was performing his duties as
a driver.
C. In the case of Peter, if he were to be considered as
employee, the exercise of due diligence in the selection and
supervision of peter would not be a material issue since the
conviction of Peter would result in a subsidiary liability where
the defense would not be available by the employer.
In the case of Paul, since the basis of subsidiary liability is the
pater familias rule under Art. 2180, the defense of selection
and supervision of the employee would be a valid defense.
ALTERNATIVE ANSWER:
C. In the case of Peter, if he were to be considered an
employee, the exercise of due diligence in the selection and
supervision of Peter would not be a material issue since the
conviction of Peter would result in a subsidiary liability where
the defense would not be available by the employer.
In the case of Paul, since he was in the performance of his
work at the time the incident occurred, the school may be held
subsidiarily liable not because of the conviction of Peter, but
because of the negligence of Paul under Art. 2180.
Vicarious Liability (2001)
After working overtime up to midnight, Alberto, an executive
of an insurance company drove a company vehicle to a favorite
Videoke bar where he had some drinks and sang some songs
with friends to "unwind". At 2:00 a.m., he drove home, but in
doing so, he bumped a tricycle, resulting in the death of its
driver. May the insurance company be held liable for the
negligent act of Alberto? Why?
SUGGESTED ANSWER:
The insurance company is not liable because when the accident
occurred, Alberto was not acting within the assigned tasks of
his employment.
It is true that under Art. 2180 (par. 5), employers are liable for
damages caused by their employees who were acting within the
scope of their assigned tasks. However, the mere fact that
Alberto was using a service vehicle of the employer at the time
of the injurious accident does not necessarily mean that he was
operating the vehicle within the scope of his employment. In
Castilex Industrial Corp. v. Vasquez Jr (321 SCRA393 [1999]). the
Supreme Court held that notwithstanding the fact that the
employee did some overtime work for the company, the former
was, nevertheless, engaged in his own affairs or carrying out a
personal purpose when he went to a restaurant at 2:00 a.m. after
coming out from work. The time of the
accident (also
2:00 a. m.) was outside normal working hours.
ALTERNATIVE ANSWER:
The insurance company is liable if Alberto was negligent in the
operation of the car and the car was assigned to him for the
benefit of the insurance company, and even though he was not
within the scope of his assigned tasks when the accident
happened. In one case decided by the Supreme Court, where
an executive of a pharmaceutical company was given the use
of a company car, and after office hours, the executive made
personal use of the car and met an accident, the employer was
also made liable under Art. 2180 of the Civil Code for the
injury caused by the negligent operation of the car by the
executive, on the ground that the car which caused the injury
was assigned to the executive by the employer for the prestige
of the company. The insurance company was held liable even
though the employee was not performing within the scope of
his assigned tasks when the accident happened [Valenzuela v.
CA, 253 SCRA 3O3 (1996)].
The doctrine of VICARIOUS LIABILITY is that which
Vicarious Liability (2002)
Explain the concept of vicarious liability in quasi-delicts.
(1%) SUGGESTED
ANSWER:
renders a person liable for the negligence of others for whose
acts or omission the law makes him responsible on the theory
that they are under his control and supervision.
Vicarious Liability (2004)
OJ was employed as professional driver of MM Transit bus
owned by Mr. BT. In the course of his work, OJ hit a
pedestrian who was seriously injured and later died in the
hospital as a result of the accident. The victims heirs sued the
driver and the owner of the bus for damages. Is there a
presumption in this case that Mr. BT, the owner, had been
negligent? If so, is the presumption absolute or not?
Explain. (5%)
SUGGESTED ANSWER:
Yes, there is a presumption of negligence on the part of the
employer. However, such presumption is rebuttable. The
liability of the employer shall cease when they prove that they
observed the diligence of a good father of a family to prevent
damage (Article 2180, Civil Code).
When the employee causes damage due to his own negligence
while performing his own duties, there arises the juris tantum
presumption that the employer is negligent, rebuttable only by
proof of observance of the diligence of a good father of a family
(Metro Manila Transit v. CA, 223 SCRA 521 [1993]; Delsan
Transport Lines v, C&tA Construction, 412 SCRA 524 2003).
Likewise, if the driver is charged and convicted in a criminal
case for criminal negligence, BT is subsidiarily liable for the
damages arising from the criminal act.
Vicarious Liability (2006)
Arturo sold his Pajero to Benjamin for P1 Million. Benjamin took
the vehicle but did not register the sale with the Land
Transportation Office. He allowed his son Carlos, a minor who did
not have a driver's license, to drive the car to buy pan de sal in a
bakery. On the way, Carlos driving in a reckless manner,
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
sideswiped Dennis, then riding a bicycle. As a result, he suffered
serious physical injuries. Dennis filed a criminal complaint against
Carlos for reckless imprudence resulting in serious physical
injuries.
1. Can Dennis file an independent civil action against
Carlos and his father Benjamin for damages based on quasi-
delict?
Explain. (2,5%)
SUGGESTED ANSWER: Yes, Dennis can file an independent
civil action against Carlos and his father for damages based on
quasi-delict there being an act or omission causing damage to
another without contractual obligation. Under Section 1 of
Rule 111 of the 2000 Rules on Criminal Procedure, what is
deemed instituted with the criminal action is only the action to
recover civil liability arising from the act or omission punished
by law. An action based on quasi-delict is no longer deemed
instituted and may be filed separately [Section 3, Rule 111,
Rules of Criminal Procedure].
2. Assuming Dennis' action is tenable, can Benjamin
raise the defense that he is not liable because the vehicle is not
registered in his name? Explain. (2.5%)
SUGGESTED ANSWER: No, Benjamin cannot raise the
defense that the vehicle is not registered in his name. His liability,
vicarious in character, is based on Article 2180 because he is the
father of a minor who caused damage due to negligence. While the
suit will prosper against the registered owner, it is the actual owner
of the private vehicle who is ultimately liable (See Duavit v.
CA, G.R. No. L-29759, May 18, 1989). The purpose of car
registration is to reduce difficulty in identifying the party liable in
case of accidents
(Villanueva v. Domingo, G.R. No. 144274, September 14, 2004).
Vicarious Liability; Public Utility (2000)
Silvestre leased a car from Avis-Rent-A-Car Co. at the Mactan
International Airport. No sooner had he driven the car outside
the airport when, due to his negligence, he bumped an FX taxi
owned and driven by Victor, causing damage to the latter in the
amount of P100,000.00. Victor filed an action for damages
against both Silvestre and Avis, based on quasi-delict. Avis
filed a motion to dismiss the complaint against it on the ground
of failure to state a cause
of action. Resolve the motion. (3%) SUGGESTED
ANSWER:
The motion to dismiss should be granted, AVIS is not the
employer of Silvestre; hence, there is no right of action against
AVIS under Article 2180 of the Civil Code. Not being the
employer, AVIS has no duty to supervise Silvestre. Neither has
AVIS the duty to observe due diligence in the selection of its
customers. Besides, it was given in the problem that the cause
of the accident was the negligence of
Silvestre.
ALTERNATIVE ANSWER:
The motion should be denied. Under the Public Service Law,
the registered owner of a public utility is liable for the damages
suffered by third persons through the use of such public utility.
Hence, the cause of action is based in law, the Public Service
Law.
INTELLECTUAL PROPERTY
Intellectual Creation (2004)
Dr. ALX is a scientist honored for work related to the human
genome project. Among his pioneering efforts concern stem
cell research for the cure of Alzheimers disease. Under
corporate sponsorship, he helped develop a microbe that ate
and digested oil spills in the sea.
Now he leads a college team for cancer research in MSS State.
The team has experimented on a mouse whose body cells
replicate and bear cancerous tumor. Called oncomouse , it
is a life-form useful for medical research and it is a novel
creation. Its body cells do not naturally occur in nature but
are the product of mans intellect, industry and ingenuity.
However, there is a doubt whether local property laws and
ethics would allow rights of exclusive ownership on any life-
form. Dr. ALX needs your advice: (1) whether the reciprocity
principle in private international law could be applied in our
jurisdiction; and (2) whether there are legal and ethical reasons
that could frustrate his claim of exclusive ownership over the
life-form
called oncomouse in Manila? What will be your advice to
him? (5%)
SUGGESTED ANSWER:
(1) The reciprocity principle in private international law
may be applied in our jurisdiction. Section 3 of R.A. 8293, the
Intellectual Property Code, provides for reciprocity, as
follows: "Any person who is a national, or who is domiciled,
or has a real and effective industrial establishment in a country
which is a party to any convention, treaty or agreement
relating to intellectual property rights or the repression of
unfair competition, to which the Philippines is also a party, or
extends reciprocal rights to nationals of the Philippines by
law, shall be entitled to benefits to the extent necessary to give
effect to any provision of such convention, treaty or
reciprocal law, in addition to the rights to which any owner of
an intellectual property right is otherwise entitled by this Act.
(n)" To illustrate: the Philippines may refrain from imposing a
requirement of local incorporation or establishment of a local
domicile for the protection of industrial property rights of
foreign nationals (citizens of Canada, Switzerland, U.S.) if the
countries of said foreign nationals refrain from imposing said
requirement on Filipino citizens.
ALTERNATIVE ANSWER:
Reciprocity principle cannot be applied in our jurisdiction
because the Philippines is a party to the TRIPS agreement and
the WTO. The principle involved is the most-favored nation
clause which is the principle of non-discrimination. The
protection afforded to intellectual property protection in the
Philippines also applies to other members of the WTO. Thus,
it is not really reciprocity principle in private international law
that applies, but the most-favored nation clause under public
international law.
CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)
(2) There is no legal reason why "oncomouse" cannot be
protected under the law. Among those excluded from patent
protection are "plant varieties or animal breeds, or essentially
biological process for the production of plants and animals"
(Section 22.4 Intellectual Property Code, R.A. No. 8293). The
"oncomouse" in the problem is not an essentially biological
process for the production of animals. It is a real invention
because its body cells do not naturally occur in nature but are
the product of man's ingenuity, intellect and industry.

The breeding of oncomouse has novelty, inventive step and

industrial application. These are the three requisites of
patentability. (Sec. 29, IPC)

There are no ethical reasons why Dr. ADX and his college
team cannot be given exclusive ownership over their
invention. The use of such genetically modified mouse, useful
for cancer research, outweighs considerations for animal
rights.

There are no legal and ethical reasons that would frustrate Dr.
ALX's claim of exclusive ownership over "oncomouse".
Animals are property capable of being appropriated and
owned'. In fact, one can own pet dogs or cats, or any other
animal. If wild animals are capable of being owned, with more
reason animals technologically enhanced or corrupted by
man's invention or industry are susceptible to exclusive
ownership by the inventor.
ALTERNATIVE ANSWER:
The oncomouse is a higher life form which does not fall
within the definition of the term "invention". Neither may it
fall within the ambit of the term "manufacture" which usually
implies a non-living mechanistic product. The oncomouse is
better regarded as a "discovery" which is the common
patrimony of man.
ALTERNATIVE ANSWER:
The "oncomouse" is a non-patentable invention. Hence,
cannot be owned exclusively by its inventor. It is a method for
the treatment of the human or animal body by surgery or
therapy and diagnostic methods practiced on said bodies are
not patentable under Sec. 22 of the IPC.